Tran v. Hot Rod Car Show et al

Filing 3

ORDER: (1) Denying 2 Motion to Proceed in forma pauperis as Barred by 28 U.S.C. § 1915(g); and (2) Dismissing Civil Action without prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). Signed by Judge Barry Ted Moskowitz on 7/3/2017. (All non-registered users served via U.S. Mail Service)(rlu)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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HOANG MINH TRAN,
Booking #17104099,

Case No.: 3:17-cv-00777-BTM-BGS

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ORDER:

Plaintiff,
vs.

1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 2]

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HOT ROD CAR SHOW, et al.,
Defendants.

AND

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(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)

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HOANG MINH TRAN (Plaintiff), a pretrial detainee and/or convicted prisoner

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serving his sentence in local custody at the San Diego County Sheriff Department’s

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George Bailey Detention Facility, and proceeding pro se, has filed a civil rights

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complaint pursuant to 42 U.S.C. § 1983 (ECF No. 1).

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Plaintiff claims the “Hot Rod Car Show” in Lakeside, California, the “owner of the

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bar next to the Hot Rod Car Show,” and unidentified John Does 1-10, denied his First,

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Fifth, Eighth, and Fourteenth Amendment rights in November 2016. Plaintiff claims
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Defendants wrongfully accused and imprisoned him and two of his friends in a “Toyota

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Avalon XLS Edition” based on allegations that they had “stolen someone’s high end

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purse.” (ECF No. 1 at 4.) After Plaintiff called 911, Sheriff’s Deputies arrived, “end[ed]

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up siding with [Plaintiff],” and released them “without further problem,” but he now

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seeks $3,000,000 in general and punitive damages based on the incident. (Id. at 4, 7.)

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Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a);

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instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28

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U.S.C. § 1915(a) (ECF No. 2).

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I.

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Motion to Proceed IFP
“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however,

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“face … additional hurdle[s].” Id.

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Specifically, in addition to requiring prisoners to “pay the full amount of a filing

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fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v.

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Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act

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(“PLRA”) amended section 1915 to preclude the privilege to proceed IFP:

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. . . 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.

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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’

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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

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“Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

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Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter

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“Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful

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suits may entirely be barred from IFP status under the three strikes rule[.]”). The
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objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner

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litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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“[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both

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before and after the statute’s effective date.” Id. at 1311.

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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner,

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which were dismissed on the ground that they were frivolous, malicious, or failed to state

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a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the

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district court styles such dismissal as a denial of the prisoner’s application to file the

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action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)

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(noting that when court “review[s] a dismissal to determine whether it counts as a strike,

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the style of the dismissal or the procedural posture is immaterial. Instead, the central

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question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure

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to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

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Once a prisoner has accumulated three strikes, he is simply prohibited by section

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1915(g) from pursuing any other IFP civil action or appeal in federal court unless he

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alleges he is facing “imminent danger of serious physical injury.” See 28 U.S.C.

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§ 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP

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complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger

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of serious physical injury’ at the time of filing.”).

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II.

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Application to Plaintiff
As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has

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ascertained that it does not contain any “plausible allegations” to suggest he “faced

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‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at

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1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiff’s Complaint seeks

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money damages against private parties for “wrongfully” detaining him in November

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2016 based on suspicion of theft. (ECF No. 1 at 4.) These claims are not only insufficient

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to plausibly show “imminent danger,” they are also insufficient to support any plausible
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claim for relief under § 1983 whatsoever. See Ouzts v. Maryland Nat’l Ins. Co., 505 F.2d

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547, 550 (9th Cir. 1974) (“[P]urely private conduct, no matter how wrongful, is not

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within the protective orbit of section 1983.”); see also Price v. Hawaii, 939 F.2d 702,

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707-08 (9th Cir. 1991).

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And while Defendants typically carry the burden to show that a prisoner is not

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entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court

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docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria

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under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case here.

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A court may take judicial notice of its own records, see Molus v. Swan, Civil Case

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No. 3:05-cv-00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing

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United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v.

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Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take

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notice of proceedings in other courts, both within and without the federal judicial system,

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if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803

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n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council

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v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
Plaintiff Hoang Minh Tran, currently identified as San Diego Sheriff’s Department

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Inmate Booking #17104099, and previously identified as CDCR Inmate #AA-5944, has

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had four prior prisoner civil actions dismissed on the grounds that they were frivolous,

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malicious, or failed to state a claim upon which relief may be granted. They are:

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1)

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Cal. Aug. 23, 2010) (Order Granting Motion to Proceed IFP and Dismissing

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Action For Failing to State a Claim upon which relief may be granted

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pursuant to 28 U.S.C. § 1915(e)(2) & § 1915A(b)) (ECF No. 4) (strike one);

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Tran v. Gore, et al., Civil Case No. 3:10-cv-1323-BTM-WMc (S.D.

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3:17-cv-00777-BTM-BGS

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2)

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Cal. Feb. 14, 2011) (Order Dismissing First Amended Complaint for Failing

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to State a Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) &

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1915A(b)) (ECF No. 5) (strike two);

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3)

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Cal. Feb. 15, 2011) (Order Dismissing First Amended Complaint as

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Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b)) (ECF No. 8)

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(strike three); and

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4)

Tran v. Gore, et al., Civil Case No. 3:10-cv-1751-JAH-WVG (S.D.

Tran v. Gore, et al., Civil Case No. 3:10-cv-2036-JAH-WVG (S.D.

Tran v. Gore, et al., Civil Case No. 3:10-cv-1880-MMA-BLM (S.D.

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Cal. Feb. 14, 2011) (Order Dismissing First Amended Complaint for Failing

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to State a Claim and as Frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B) &

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1915A(b)) (ECF No. 8) (strike four).

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Accordingly, because Plaintiff has, while incarcerated, accumulated more than

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three “strikes” pursuant to § 1915(g), and he fails to make a “plausible allegation” that he

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faced imminent danger of serious physical injury at the time he filed his Complaint, he is

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not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at

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1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C.

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§ 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes

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prisoners with a history of abusing the legal system from continuing to abuse it while

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enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984)

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(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).

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III.

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For the reasons set forth above, the Court:

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Conclusion and Order

1)

DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28

U.S.C. § 1915(g);

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2)

DISMISSES this action without prejudice for failure to pay the full statutory

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and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a);

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3)

CERTIFIES that an IFP appeal from this Order would be frivolous and

therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and

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4)

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IT IS SO ORDERED.

DIRECTS the Clerk of Court to close the file.

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Dated: July 3, 2017

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