Schmitt v. U.S. Marshal Service et al

Filing 4

ORDER: Denying 3 Motion to Proceed in Forma Pauperis as Barred by 28 USC 1915(g), and (2) Dismissing Civil Action Without Prejudice for Failure to State a Claim Pursuant to 28 U.S.C. § 1915A(b)(1). Signed by Judge Janis L. Sammartino on 11/20/2017. (All non-registered users served via U.S. Mail Service)(mpl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 MICHAEL SCHMITT, CDCR #BB-8941, Case No.: 3:17-CV-00817-JLS-KSC ORDER: Plaintiff, 13 vs. 14 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF No. 3] 15 16 U.S. MARSHAL SERVICE; AGENT WALKER, Fugitive Task Force, 17 AND Defendants. 18 (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915A(b)(1) 19 20 21 22 23 24 Plaintiff Michael Schmitt, currently incarcerated at the California Institution for Men 25 (“CIM”) in Chino, California,1 and proceeding pro se, has filed a civil action using a 26 27 1 28 Plaintiff was incarcerated at North Kern State Prison in Delano, California, at the time he filed suit, (see ECF No. 1, at 1), but the return address on his latest filing lists a return 1 3:17-CV-00817-JLS-KSC 1 Standard Form 95 “Claim for Damage, Injury, or Death,” pursuant to the Federal Tort 2 Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80 (ECF No. 1). In this two-page 3 document, Plaintiff claims the U.S. Marshal Service and a Fugitive Task Force agent 4 named Walker caused $750 in property damage when they broke a door and forced entry 5 into his home at 1425 14th Street in San Diego, California, while arresting him on 6 November 2, 2016, based on a “County Probations Violations Warrant.” (Id. at 1.) 7 Plaintiff did not prepay the civil filing fee when he filed suit, nor did he file a Motion 8 to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Therefore, on 9 August 1, 2017, the Court dismissed the case pursuant to 28 U.S.C. § 1914(a), but granted 10 Plaintiff forty-five days leave in which to do either, (ECF No. 2). On September 1, 2017, 11 he filed a Motion to Proceed IFP, (ECF No. 3). 12 I. Motion to Proceed IFP 13 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 14 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 15 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 16 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 17 § 1915(a)(3)(b), Bruce v. Samuels, 136 S. Ct. 627, 629 (2016), the Prison Litigation 18 Reform Act (“PLRA”) amended section 1915 to altogether preclude the privilege to 19 proceed IFP: 20 21 22 23 . . . 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. 24 25 26 27 28 address at CIM. (See ECF No. 3 at 1). While Civil Local Rule 83.11.b requires parties proceeding pro se to “keep the court and opposing parties advised as to current address,” the Court has sua sponte confirmed that Plaintiff has since been transferred to CIM and has directed the Clerk to amend the docket to reflect Plaintiff’s current address in order to ensure he is served with this Order. See (last visited Nov. 1, 2017). 2 3:17-CV-00817-JLS-KSC 1 28 U.S.C. § 1915(g). 2 provision.” 3 “This subdivision is commonly known as the ‘three strikes’ “Andrews”). Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter 4 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 5 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 6 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 7 suits may entirely be barred from IFP status under the three strikes rule”). The objective 8 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 9 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 10 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 11 the statute’s effective date.” Id. at 1311. 12 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 13 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 14 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 15 styles such dismissal as a denial of the prisoner’s application to file the action without 16 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); 17 see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when 18 court “review[s] a dismissal to determine whether it counts as a strike, the style of the 19 dismissal or the procedural posture is immaterial. Instead, the central question is whether 20 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim’”) 21 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 22 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 23 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 24 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 25 493 F.3d at 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a 26 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 27 the time of filing”). 28 /// 3 3:17-CV-00817-JLS-KSC 1 II. Discussion 2 As an initial matter, the Court has carefully reviewed Plaintiff’s pleading and has 3 ascertained that it does not contain any “plausible allegations” to suggest he “faced 4 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 5 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted above, Plaintiff is currently 6 incarcerated at CIM, and he seeks money damages pursuant to the FTCA based on alleged 7 property damage done to his home in San Diego during his arrest approximately one year 8 ago on November 2, 2016. (ECF No. 1, at 1.) 9 While defendants typically carry the burden to show that a prisoner is not entitled to 10 proceed IFP, “in some instances, the district court docket may be sufficient to show that a 11 prior dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts as 12 a strike.” Andrews, 398 F.3d at 1119–20. That is the case here. 13 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 14 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States 15 v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t 16 Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings 17 in other courts, both within and without the federal judicial system, if those proceedings 18 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 19 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see 20 also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 21 244, 248 (9th Cir. 1992). 22 Therefore, this Court takes judicial notice that Plaintiff, Michael Schmitt, currently 23 identified as CDCR Inmate #BB-8941, and formerly identified as San Diego County 24 Sheriff’s Department Inmate Booking #14765015, CDCR Inmate #T-74599, and BOP 25 Register Inmate #53627-198, has had three prior prisoner civil actions dismissed on the 26 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 27 may be granted. 28 /// 4 3:17-CV-00817-JLS-KSC 1 They are: 2 1) Schmitt v. Costello, et al., Civil Case No. 3:04-cv-02582-H-WMc (S.D. Cal. 3 May 23, 2005) (Order Dismissing First Amended Complaint “for failing to state a claim 4 upon which relief may be granted and for seeking monetary relief against Defendants who 5 are immune” pursuant to 28 U.S.C. §§ 1915(e)(2) & 1915A)), (ECF No. 6) (strike one); 6 2) Schmitt v. Gore, et al., Civil Case No. 3:14-cv-02937-JLS-RBB (S.D. Cal. 7 April 15, 2015) (Order granting IFP and Dismissing Complaint “for failing to state a claim 8 upon which § 1983 relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 9 1915A(b)(1)”), (ECF No. 4) (strike two); and 10 3) Schmitt v. Gore, et al., Civil Case No. 3:17-cv-00753-JAH-NLS (S.D. Cal. 11 July 11, 2017) (Order Dismissing Civil Action for Failure to Pay Filing Fees, Failing to 12 File Motion to Proceed IFP and “as frivolous pursuant to 28 U.S.C. § 1915A(b)(1)”), (ECF 13 No. 3) (strike three). 14 Accordingly, because Plaintiff has, while incarcerated, accumulated three “strikes” 15 pursuant to § 1915(g), and he fails to make a “plausible allegation” that he faced imminent 16 danger of serious physical injury at the time of filing, he is not entitled to the privilege of 17 proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 18 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all 19 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 20 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 21 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 22 itself a matter of privilege and not right.”). 23 III. Screening of Complaint pursuant to § 1915A 24 While the Court has determined Plaintiff is not entitled to proceed IFP in this action, 25 and his case requires dismissal pursuant to 28 U.S.C. § 1914(a) alone, it further elects to 26 conduct a sua sponte review of Plaintiff’s Complaint because he was “incarcerated or 27 detained in any facility [and] is accused of, sentenced for, or adjudicated delinquent for, 28 violations of criminal law or the terms or conditions of parole, probation, pretrial release, 5 3:17-CV-00817-JLS-KSC 1 or diversionary program” at the time he filed it. See 28 U.S.C. § 1915A(a), (c). 2 Section 1915A, also enacted as part of PLRA, requires sua sponte dismissal of 3 prisoner complaints, or any portions thereof, which are frivolous, malicious, or fail to state 4 a claim upon which relief may be granted. 28 U.S.C. § 1915A(b); Coleman v. Tollefson, 5 135 S. Ct. 1759, 1764 (2015); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000). 6 “The purpose of § 1915A is to ‘ensure that the targets of frivolous or malicious suits need 7 not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 907 n.1 (9th Cir. 8 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 9 2012)). 10 Plaintiff’s Complaint fails to state a claim upon which FTCA relief may be granted 11 against either the “U.S. Marshal Service” or “Agent Walker.” 12 § 1915A(b)(1). The FTCA, 28 U.S.C. §§ 1346(b) & 2671–2680, waives the sovereign 13 immunity of the United States for certain torts committed by federal employees. FDIC v. 14 Meyer, 510 U.S. 471, 476 (1994). The FTCA provides that district courts have exclusive 15 jurisdiction of civil actions against the United States for money damages “for injury or loss 16 of property, or personal injury or death caused by the negligent or wrongful act or omission 17 of any employee” of the federal government while acting within the scope of his office or 18 employment. 28 U.S.C. § 1346(b); FDIC, 510 U.S. at 476 n.4. See id.; 28 U.S.C. 19 As such, the FTCA “provides the exclusive statutory remedy for torts committed by 20 employees of the United States who act within the scope of their employment.” Salcedo- 21 Albanez v. United States, 149 F. Supp. 2d 1240, 1243 (S.D. Cal. 2001). Therefore, a suit 22 under the FTCA must be filed solely against the United States. See 28 U.S.C. § 1346(b); 23 Lance v. United States, 70 F.3d 1093, 1095 (9th Cir. 1995) (“The United States is the only 24 proper defendant in an FTCA action.”). The FTCA does not authorize tort claims against 25 federal agencies in their own names, nor does it allow claims against individual 26 government employees acting within the scope of their employment. 27 § 2679(b)(1); FDIC v. Craft, 157 F.3d 697, 706 (9th Cir. 1998) (“The FTCA is the 28 exclusive remedy for tortious conduct by the United States, and it only allows claims 28 U.S.C. 6 3:17-CV-00817-JLS-KSC 1 against the United States.”); Epstein v. United States, No. 16-CV-2929-BAS (WVG), 2017 2 WL 4227054, at *2 (S.D. Cal. Sept. 21, 2017). 3 Accordingly, because Plaintiff’s Complaint names only the U.S. Marshal Service 4 and Agent Walker as Defendants, it is also subject to sua sponte dismissal because it fails 5 to state a claim upon which FTCA relief may be granted. See 28 U.S.C. § 1915A(b)(1); 6 Coleman, 135 S. Ct. at 1764; Nordstrom, 762 F.3d at 907, n.1. 7 IV. 8 9 10 11 Conclusion and Order For the reasons set forth above, the Court: 1) DENIES Plaintiff’s Motion to Proceed IFP, (ECF No. 3), as barred by 28 U.S.C. § 1915(g); 2) DISMISSES this action without prejudice for failure to pay the full statutory 12 and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a), and for failing to 13 state a claim upon which FTCA relief can be granted pursuant to 28 U.S.C. § 1915A(b)(1); 14 3) CERTIFIES that an IFP appeal from this Order would be frivolous and 15 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 16 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 17 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 18 would not be frivolous); and 19 4) 20 IT IS SO ORDERED. 21 DIRECTS the Clerk of Court to close the file. Dated: November 20, 2017 22 23 24 25 26 27 28 7 3:17-CV-00817-JLS-KSC

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