Adrian Moon v. Raymond Madden et al

Filing 10

ORDER: (1) Denying 4 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 and as Frivolous. Signed by Judge Roger T. Benitez on 6/13/2017.(All non-registered users served via U.S. Mail Service)(knb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 3:17-cv-l042-BEN-AGS

ADRIAN MOON,
CDCR #AF-0335,

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ORDER:

Plaintiff,

(1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(g)
[ECF Doc. No. 4]; and

v.

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RAYMOND MADDEN, et al.,
Defendants.

(2) DISMISSING CIVIL ACTION
WITHOUT PREJUDICE FOR
FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
AND AS FRIVOLOUS PURSUANT
TO 28 U.S.C. § 1915A

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Plaintiff, Adrian Moon, currently housed at the California Rehabilitation Center,

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has filed a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (ECF Doc.

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No. 1.) Plaintiff alleges that his constitutional rights were violated at Centinela State

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Prison. See Compl. at 3-7.

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Plaintiff has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a);
instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 4).
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3:17-cv-l 042-BEN-AGS

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I.

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 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

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of a filing fee,” in “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), 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:
... 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.l (9th Cir. 2005) (hereafter

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“Andrews”).

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

17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter
18 “Cervantes”) (under the PLRA, “[prisoners who have repeatedly brought unsuccessful
19 suits may entirely be barred from IFP status under the three strikes rule[.]”). The
20 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).

22 “[Sjection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both
23 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,

25 which were dismissed on the ground that they were frivolous, malicious, or failed to state
26 a claim,” Andrews, 398 F.3d at 1116 n.l (internal quotations omitted), “even if the
27 district court styles such dismissal as a denial of the prisoner’s application to file the
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3:17-cv-1042-BEN-AGS

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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). Once a prisoner has accumulated three strikes, he is prohibited by

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section 1915(g) from pursuing any other IFP action in federal court unless he can show

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he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g);

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

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“make[] a plausible allegation that the prisoner faced ‘imminent danger of serious

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II.

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

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

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

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at 1055 (quoting 28 U.S.C. § 1915(g)).
A court “‘may take notice of proceedings in other courts, both within and without

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14 the federal judicial system, if those proceedings have a direct relation to matters at
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issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v.

16 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel.
17 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992).
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Thus, this Court takes judicial notice that Plaintiff, while incarcerated, has brought

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at least three prior civil actions1 which have been dismissed on the grounds that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28

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U.S.C. § 1915(g).

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III

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The Court has reviewed PACER and finds that Plaintiff has filed thirty eight (38) civil
actions in several District Courts and twenty one (21) appeals in the Ninth Circuit Court
of Appeals. See https://pcl.uscourts.gov/search (Website last visited May 31, 2017.)
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3:17-cv-1042-BEN-AGS

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They are:

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1)

Moon v. Johnson, et al, Civil Case No. 5:12-cv-00632-US-MLG (C.D. Cal.

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May 7, 2012) (Order Denying Leave to File Action Without Prepayment of

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Full Filing Fee for as “frivolous, malicious or fails to state a claim upon

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which relief may be granted.”) (ECF No. 3) (strike one);
2)

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Moon v. Junious, et al., Civil Case No. l:12-cv-00096-GSA (E.D. Cal. Mar.

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27, 2013) (Order Dismissing Action for failure to state a claim) (ECF No.

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54) (strike two);
3)

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Moon v. C. Reece, et al., Civil Case No. l:12-cv-01243-MJS (E.D. Cal. May

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22,2013) (Order Denying Plaintiffs Motion to Disqualify Magistrate Judge,

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Denying Plaintiffs Motion to Shorten Time to Respond to OSC, and

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Dismissing Plaintiffs action for failure to state a claim upon which relief

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may be granted under § 1983) (ECF No. 39.) (strike three).
Accordingly, because Plaintiff has, while incarcerated, accumulated at least the

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

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allegation” that he faced imminent danger of serious physical injury at the time he filed

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his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See

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Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (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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(“[Cjourt permission to proceed IFP is itself a matter of privilege and not right.”).

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II.

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Sua Sponte Screening per 28 U.S.C. § 1915A
While Plaintiff has been denied leave to commence this civil action without

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prepayment of the $400 civil filing fee required by 28 U.S.C. § 1914(a), and his case

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requires dismissal for that reason alone, the Court also elects to conduct a sua sponte

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review of Plaintiff s Complaint because he was “incarcerated or detained in any facility

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[and] is accused of, sentenced for, or adjudicated delinquent for, violations of criminal

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law or the terms or conditions of parole, probation, pretrial release, or diversionary

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program” at the time he filed this action. See 28 U.S.C. § 1915A(a), (c). Section 1915A,

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enacted as part of the Prison Litigation Reform Act (“PLRA”), requires sua sponte

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dismissal of prisoner complaints, or any portions thereof, which are frivolous, malicious,

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or fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b);

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Coleman, 135 S. Ct. at 1764; Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

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“The purpose of § 1915 A is to ‘ensure that the targets of frivolous or malicious suits need

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not bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903,920 n.l (9th

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Cir. 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.

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2012)).

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The Court finds Plaintiffs Complaint is patently frivolous. A pleading is

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“factually] frivolous[]” under § 1915A(b)(l) if “the facts alleged rise to the level of the

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irrational or the wholly incredible, whether or not there are judicially noticeable facts

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available to contradict them.” Denton v. Hernandez, 504 U.S. 25, 25-26 (1992). Plaintiff

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alleges that the correctional officers at Centinela State Prison are “members of a

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notorious terrorist organized crime syndicate” and they are “actively participat[ing]” in

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the “false imprisonment, kidnapping for ransom” of Plaintiff. (Compl. at 8.)

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“[A] complaint, containing as it does both factual allegations and legal

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conclusions, is frivolous where it lacks an arguable basis either in law or in fact....

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[The] term ‘frivolous,’ when applied to a complaint, embraces not only the inarguable

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legal conclusion, but also the fanciful factual allegation.” Neitzke v. Williams, 490 U.S.

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319, 325 (1989). When determining whether a complaint is frivolous, the court need not

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accept the allegations as true, but must “pierce the veil of the complaint’s factual

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allegations,” Id. at 327, to determine whether they are “‘fanciful,’ ‘fantastic,’ [or]

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‘delusional,’” Denton, 504 U.S. at 33 (quoting Neitzke, 490 U.S. at 328).

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Here, the Court finds that Plaintiffs claims “rise to the level of the irrational or the

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wholly incredible,” Denton, 504 U.S. at 33. As such, his Complaint requires dismissal as

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frivolous and without leave to amend. See Lopez v. Smith 203 F.3d 1122, 1127 n.8 (9th

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Cir. 2000) (en banc) (noting that if a claim is classified as frivolous, “there is by

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definition no merit to the underlying action and so no reason to grant leave to amend.”).

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III.

Conclusion and Order
For the reasons set forth above, the Court hereby:

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(1)

DENIES Plaintiffs Motion to Proceed IFP (ECF No. 4) as barred by 28

9 U.S.C. § 1915(g);
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(2) DISMISSES this civil action sua sponte as frivolous pursuant to 28 U.S.C.
§ 1915A(b)(l) and without leave to amend; and
(3)

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

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

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Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548,

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550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if

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appeal would not be frivolous).

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IT IS SO ORDERED.

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2017

/ HON'rDGER T. BENITEZ
United States District Judge

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