Wilkins v. McGuire et al

Filing 6

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). The Court DENIES Plaintiff's Mot ion to Proceed IFP [ECF No. 2] as barred by 28 U.S.C. § 1915(g); DISMISSES this civil action without prejudice based on Plaintiff's failure to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); DIRECTS the Clerk of Court to close the file. Signed by Judge Dana M. Sabraw on 10/10/2017. (All non-registered users served via U.S. Mail Service)(aef)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS, aka NERRAH
BROWN, CDCR #AN-2387,

ORDER

Plaintiff,

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Case No.: 3:17-cv-01385-DMS-BGS

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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DANIELLE McGUIRE, Litigation
Coordinator; A. TINAJERO,
Asst. Litigation Coordinator,

AND

Defendants.

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

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KEENAN G. WILKINS, aka Nerrah Brown (“Plaintiff”), currently incarcerated at

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Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and

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proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. § 1983.

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In both his original, and a subsequently filed First Amended Complaint, Plaintiff

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claims two RJD Litigation Coordinators denied him access to the courts and equal

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protection of the laws on June 29, 2016, by failing to arrange for him to appear for a

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“court call” before the Fifth Appellate District of the California Court of Appeal. See
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ECF No. 1 at 3-4; ECF No. 5 at 3-4, 11.

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Plaintiff did not pay the civil filing fee required to commence a civil action when

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

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pursuant to 28 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 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount

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of a filing 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) (emphasis added). “This subdivision is commonly known as the

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‘three strikes’ provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
“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 reviewed both Plaintiff’s original, as well as his

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Amended Complaint, and has ascertained that neither contains any “plausible

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allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time

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of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as noted

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above, Plaintiff seeks to sue two RJD Litigation Coordinators for failing to arrange for

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him to appear telephonically at an oral argument before the California Court of Appeal on

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June 29, 2016. See ECF No. 1 at 3-4; ECF No. 5 at 3-4. None of Plaintiff’s allegations

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plausibly suggest, however, that he faced any “imminent danger of serious physical

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injury” at the time he filed either his original or his Amended Complaint. See 28 U.S.C.

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§ 1915(g); Byrd v. Dir. of Corr., No. 15CV2339 GPC (KSC), 2016 WL 773229, at *2

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(S.D. Cal. Feb. 29, 2016) (finding prisoner’s allegations of having been denied access to
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court and discriminated against based on race and religion insufficient to invoke

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§ 1915(g)’s imminent danger exception).

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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).

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Therefore, this Court takes judicial notice that Plaintiff, Keenan G. Wilkins, aka

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Nerrah Brown, currently identified as CDCR Inmate #AN-2387, has had at least five

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prior prisoner civil actions or appeals 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.

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They are:

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1)

Brown (aka Williams) v. North County Jail, Civil Case No. 3:97-cv-

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02298-MMC (N.D. Cal. Aug. 4, 1997) (Order dismissing civil rights complaint

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regarding the unauthorized, negligent, or intentional deprivation of his property for

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failure to state a claim) (ECF No. 2)1 (strike one);

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This dismissal has also been classified as a “strike” by the Northern District of
California in a more recent civil rights action filed by Plaintiff. See Wilkins (aka Brown)
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2)

Wilkins v. Ahern, et al., Civil Case No. 3:08-cv-03850-MMC (N.D.

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Cal. Feb. 9, 2009) (Order of Dismissal pursuant to 28 U.S.C. § 1915A with

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prejudice as duplicative of Wilkins v. Ahern, et al., N. D. Cal. Civil Case No. 3:08-

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cv-1084 MMC (PR) (ECF No. 8 at 2)2 (strike two);

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3)

Wilkins (aka Brown) v. County of Alameda, et al., Civil Case No.

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5:11-cv-02704-LHK (PR) (N.D. Cal. Sept. 29, 2011) (Order dismissing amended

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complaint sua sponte per 28 U.S.C. § 1915A for failure to state a claim with leave

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to amend) (ECF No. 14); (N.D. Cal. May 1, 2012) (Order dismissing civil action

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without further leave to amend as futile) (ECF No. 21 at 3) (strike three);

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Wilkins v. County of Alameda, et al., Appeal No. 12-16170 (9th Cir.

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Aug. 6, 2012) (Order) (“The district court has certified that this appeal is not taken

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in good faith and has revoked appellant’s in forma pauperis status. Our review of

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the record and of appellant’s opposition to the revocation of his in forma pauperis

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status confirms that appellant is not entitled to in forma pauperis status for this

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appeal because we find the appeal is frivolous.”) (Dkt. Entry 7 at 1)3(strike four);

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v. County of Contra Costa, Civil Case No. 3:16-cv-07016-JD (N.D. Cal. April 26, 2017)
(Order to Show Cause) (ECF No. 18 at 2).

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A prisoner’s complaint is considered frivolous under 28 U.S.C. § 1915A(b)(1) if it
“merely repeats pending or previously litigated claims.” Cato v. United States, 70 F.3d
1103, 1105 n.2 (9th Cir. 1995) (construing former 28 U.S.C. § 1915(d)) (citations and
internal quotations omitted).
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“The in forma pauperis statute repeatedly treats the trial and appellate stages of
litigation as distinct.” Coleman v. Tollefson, __ U.S. __, 135 S. Ct. 1759, 1763-64 (2015)
(“Nothing in [the PLRA] indicat[es] that Congress considered a trial court dismissal and
an appellate court decision as if they were a single entity—or that Congress intended the
former to take effect only when affirmed by the latter.”); see also Richey v. Dahne, 807
F.3d 1202, 1208 (9th Cir. 2015) (finding appellate court’s denial of prisoner’s request for
IFP status on appeal on grounds of frivolousness constituted a “strike” under § 1915(g)
“even though [it] did not dismiss the appeal until later when the [appellant] did not pay
the filing fee.”).
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5)

Wilkins (aka Brown) v. County of Alameda, et al., Appeal No. 13-

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17060 (9th Cir. Jan. 13, 2014) (Order) (“The district court has certified that this

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appeal is not taken in good faith and has revoked appellant’s in forma pauperis

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status. Our review of the record confirms that appellant is not entitled to in forma

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pauperis status for this appeal because we find the appeal is frivolous.”) (Dkt.

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Entry 7 at 1) (strike five).4

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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 failed to make a “plausible allegation” that

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he faced imminent danger of serious physical injury at the time he filed either his

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Complaint or his Amended Complaint, he is not entitled to the privilege of proceeding

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IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d

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1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all

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prisoners from accessing the courts; it only precludes prisoners with a history of abusing

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the legal system from continuing to abuse it while enjoying IFP status”); see also

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Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed

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IFP is itself a matter of privilege and not right.”).

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III.

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

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1)

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

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U.S.C. § 1915(g);

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Plaintiff has also recently had his IFP status revoked in the Northern District of
California pursuant to § 1915(g) in Wilkins (aka Brown) v. County of Contra Costa, Civil
Case No. 3:16-cv-07016-JD (N.D. Cal. April 26, 2017) (Order to Show Cause) (ECF No.
18 at 2); (N.D. Cal. July 21, 2017) (Order Dismissing Case) (ECF No. 27). A Motion to
Revoke his IFP status pursuant to § 1915(g) is also currently pending in the Eastern
District of California. See Wilkins (aka Brown) v. Gonzalez, et al., E.D. Cal. July 31,
2017) (ECF No. 50).
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2)

DISMISSES this civil action without prejudice based on Plaintiff’s failure

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to pay the full statutory and administrative $400 civil filing fee required by 28 U.S.C.

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§ 1914(a);

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3)

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

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therefore, would 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); and

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4)

DIRECTS the Clerk of Court to close the file.

IT IS SO ORDERED.
Dated: October 10, 2017

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