Tran v. Barona Casino et al
Filing
3
ORDER: (1) Denying Motion to Proceed in Forma Pauperis; and (2) Dismissing Civil Action without Prejudice for Failure to Pay Filing Fee. Signed by Judge Roger T. Benitez on 7/10/2017.(All non-registered users served via U.S. Mail Service)(knb) (jao).
1
2
3
4
5
6
7
8
9
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
HOANG MINH TRAN,
Booking #17104099,
Plaintiff,
13
14
Case No.: 3: 17-cv-00685-BEN-BLM
vs.
1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECFNo. 2]
15
16
17
18
19
20
ORDER:
BARONA CASINO, et al.,
Defendants.
AND
(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
21
22
HOANG MINH TRAN (Plaintiff), a pretrial detainee and/or convicted prisoner
23
serving his sentence in local custody at the San Diego County Sheriff Department's
24
George Bailey Detention Facility, and proceeding prose, has filed a civil rights
25
complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1). Plaintiff claims Barona Casino,
26
several unidentified security guards, and California State Department of Justice officials
27
wrongfully arrested, imprisoned, and interrogated him against his will in December 2016,
28
for "passing bogus money," attempted burglary, and attempted robbery. (Id. at 3.)
3:17-cv-00685-BEN-BLM
1
Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);
2
instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28
3
U.S.C. § 1915(a) (ECF No. 2).
4
I.
5
Motion to Proceed IFP
"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cnty.
6
Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,
7
"face ... additional hurdle[s]." Id.
8
9
Specifically, in addition to requiring prisoners to "pay the full amount of a filing
fee," in "monthly installments" or "increments" as provided by 28 U.S.C.
10
§ 1915(a)(3)(b), Bruce v. Samuels, _U.S._, 136 S. Ct. 627, 629 (2016); Williams v.
11
Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
12
("PLRA") amended section 1915 to preclude the privilege to proceed IFP:
13
... if [a] prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or
appeal in a court of the United States that was dismissed on the
grounds that it is frivolous, malicious, or fails to state a claim
upon which relief can be granted, unless the prisoner is under
imminent danger of serious physical injury.
14
15
16
17
18
28 U.S.C. § 1915(g). "This subdivision is commonly lmown as the 'three strikes'
19
provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
20
"Pursuant to§ 1915(g), a prisoner with three strikes or more cannot proceed IFP."
21
Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereinafter
22
"Cervantes") (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful
23
suits may entirely be barred from IFP status under the three strikes rule[.]"). The
24
objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner
25
litigation in federal court." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
26
"[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both
27
before and after the statute's effective date." Id. at 1311.
28
///
2
3:17-cv-00685-BEN-BLM
1
"Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,
2
which were dismissed on the ground that they were frivolous, malicious, or failed to state
3
a claim," Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even ifthe
4
district court styles such dismissal as a denial of the prisoner's application to file the
5
action without prepayment of the full filing fee." O'Neal v. Price, 531 F.3d 1146, 1153
6
(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)
7
(noting that when court "review[s] a dismissal to determine whether it counts as a strike,
8
the style of the dismissal or the procedural posture is immaterial. Instead, the central
9
question is whether the dismissal 'rang the PLRA bells of frivolous, malicious, or failure
10
to state a claim."' (quoting Blakely v. Wards, 738 FJd 607, 615 (4th Cir. 2013))).
11
Once a prisoner has accumulated three strikes, he is simply prohibited by section
12
1915(g) from pursuing any other IFP civil action or appeal in federal court unless he
13
alleges he is facing "imminent danger of serious physical injury." See 28 U.S.C.
14
§ 1915(g); Cervantes, 493 FJd at 1051-52 (noting§ 1915(g)'s exception for IFP
15
complaints which "make[] a plausible allegation that the prisoner faced 'imminent danger
16
of serious physical injury' at the time of filing.").
17
II.
18
Application to Plaintiff
As an initial matter, the Court has carefully reviewed Plaintiffs Complaint and has
19
ascertained that it does not contain any "plausible allegations" to suggest he "faced
20
'imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at
21
1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiffs Complaint seeks
22
money damages against mostly unidentified private security and law enforcement
23
personnel for "wrongfully" arresting and holding him "hostage" in a casino in December
24
2016. (ECF No. 1 at 3.) He also objects to the confiscation of$2,000 in chips, seeks the
25
restoration of his "Diamond Membership status," and claims someone towed his father's
26
Toyota Corolla "without valid reason." (Id.)
27
28
And while Defendants typically carry the burden to show that a prisoner is not
entitled to proceed IFP, Andrews, 398 F.3d at 1119, "in some instances, the district court
3
3: l 7-cv-00685-BEN-BLM
1
docket may be sufficient to show that a prior dismissal satisfies at least one of the criteria
2
under§ 1915(g) and therefore counts as a strike." Id. at 1120. That is the case here.
3
A court may take judicial notice of its own records, see Molus v. Swan, No. 3 :05-
4
cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
5
States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986), and '"may take notice of
6
proceedings in other courts, both within and without the federal judicial system, if those
7
proceedings have a direct relation to matters at issue."' Bias v. Moynihan, 508 F.3d 1212,
8
1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F .3d 801, 803 n.2 (9th Cir.
9
2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo,
10
11
Inc., 971F.2d244, 248 (9th Cir. 1992).
Plaintiff Hoang Minh Tran, currently identified as San Diego Sheriffs Department
12
Inmate Booking #17104099, and previously identified as CDCR Inmate #AA-5944, has
13
had four prior prisoner civil actions dismissed on the grounds that they were frivolous,
14
malicious, or failed to state a claim upon which relief may be granted. They are:
15
1)
Tran v. Gore, et al., No. 3:10-cv-1323-BTM-WMc (S.D. Cal. Aug.
16
23, 2010) (Order Granting Motion to Proceed IFP and Dismissing Action
17
For Failing to State a Claim upon which relief may be granted pursuant to 28
18
U.S.C. § 1915(e)(2) & § 1915A(b)) (ECF No. 4) (strike one);
19
2)
20
2011) (Order Dismissing First Amended Complaint for Failing to State a
21
Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b))
22
(ECF No. 5) (strike two);
23
3)
24
2011) (Order Dismissing First Amended Complaint as Frivolous pursuant to
25
28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)) (ECF No. 8) (strike three); and
26
4)
27
14, 2011) (Order Dismissing First Amended Complaint for Failing to State a
28
Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b))
Tran v. Gore, eta!., No. 3:10-cv-1751-JAH-WVG (S.D. Cal. Feb. 14,
Tran v. Gore, et al., No. 3:10-cv-2036-JAH-WVG (S.D. Cal. Feb. 15,
Tran v. Gore, et al., No. 3:10-cv-1880-MMA-BLM (S.D. Cal. Feb.
4
3:17-cv-00685-BEN-BLM
..
1
(ECF No. 8) (strike four).
2
Accordingly, because Plaintiff has, while incarcerated, accumulated more than
3
three "strikes" pursuant to § l 9 l 5(g), and he fails to make a "plausible allegation" that he
4
faced imminent danger of serious physical injury at the time he filed his Complaint, he is
5
not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at
6
1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.
7
§ 1915(g) "does not prevent all prisoners from accessing the courts; it only precludes
8
prisoners with a history of abusing the legal system from continuing to abuse it while
9
enjoying IFP status"); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)
10
("[C]ourt permission to proceed IFP is itself a matter of privilege and not right.").
11
III.
Conclusion and Order
12
For the reasons set forth above, the Court DENIES Plaintiffs Motion to Proceed
13
IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g); DISMISSES this action without
14
prejudice for failure to pay the full statutory and administrative $400 civil filing fee
15
required by 28 U.S.C. § 1914(a); CERTIFIES that an IFP appeal from this Order would
16
be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C.
17
§ 1915(a)(3); and DIRECTS the Clerk of Court to close the file.
18
IT IS SO ORDERED.
19
20
Dated:
Jul~k, 2017
21
22
23
24
25
26
27
28
5
3: l 7-cv-00685-BEN-BLM
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?