White v. Montgomery

Filing 11

ORDER denying Plaintiff's 8 Motion for Leave to Proceed in forma pauperis. Court denies Plaintiff's renewed Motion for IFP as barred by 28 USC 1915(g). Court dismisses this civil action sua sponte without prejudice for failure to pay the $400 civil and administrative filing fees required by 28 USC 1914(a). Court denies Plaintiff's 10 Motion to Appoint Counsel. Court directs the Clerk to close the file. Court advises the Plaintiff that any documents he seeks to file in this case will be rejected. Signed by Judge Cynthia Bashant on 4/11/2018. (All non-registered users served via U.S. Mail Service) (jah) (sjt).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 LARRY WHITE, CDCR #G-37720, Case No.: 18-cv-00576-BAS-BGS ORDER: Plaintiff, 13 v. 14 (1) DENYING RENEWED MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g); 15 16 W.L. MONTGOMERY, Defendant. 17 (2) DISMISSING ACTION; AND 18 (3) DENYING MOTION TO APPOINT COUNSEL AS MOOT 19 20 I. PROCEDURAL HISTORY 21 On March 19, 2018, Larry White, currently housed at Calipatria State Prison, filed 22 a civil rights Complaint (“Compl.”) pursuant to 42 U.S.C. §1983. (ECF No. 1.) Plaintiff 23 did not prepay the full civil filing fee required by 28 U.S.C. §1914(a); instead, he filed a 24 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2), along with a Motion to 25 Appoint Counsel (ECF No. 3). On March 27, 2018, this Court denied Plaintiff’s Motion 26 to Proceed IFP as barred by 28 U.S.C. §1915(g). (ECF No. 4 at 4.) In addition, the Court 27 found that Plaintiff’s Complaint did not contain plausible allegations that Plaintiff “faced 28 1 18cv576 1 ‘imminent danger of serious physical injury’ at the time of filing.” (Id. at 4 (citing Andrews 2 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”)).) The Court 3 directed the Clerk of Court to close the file. (Id.) 4 Despite the Court’s denial of Plaintiff’s prior IFP motion as statutorily and its 5 dismissal of the entire action, Plaintiff has filed an Amended Complaint (“FAC”), a 6 renewed Motion to Proceed IFP, and a renewed Motion for Appointment of Counsel. (ECF 7 Nos. 7, 8, 10.) The Court once more denies Plaintiff’s IFP motion and dismisses the case. 8 I. MOTION TO PROCEED IFP 9 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 10 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). “Prisoners” like Plaintiff, however, 11 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 12 of a filing fee,” in “increments” as provided by 28 U.S.C. §1915(a)(3)(b), see Williams v. 13 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 14 amended Section 1915 to preclude the privilege to proceed IFP: 15 16 17 18 . . . 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. “This subdivision is commonly known as the ‘three strikes’ 19 28 U.S.C. §1915(g). 20 provision.” 21 “Andrews”). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed 22 IFP.” Id.; see also Cervantes, 493 F.3d at 1052 (under the PLRA, “[p]risoners who have 23 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the 24 three strikes rule[.]”). The objective of the PLRA is to further “the congressional goal of 25 reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 26 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims 27 dismissed both before and after the statute’s effective date.” Id. at 1311. 28 Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter 2 18cv576 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 4 styles such dismissal as a denial of the prisoner’s application to file the action without 5 prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 6 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) from 7 pursuing any other IFP action in federal court unless he can show he is facing “imminent 8 danger of serious physical injury.” See 28 U.S.C. §1915(g); Cervantes, 493 F.3d at 1051- 9 52 (noting §1915(g)’s exception for IFP complaints which “make[] a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 11 The Court first considers whether plaintiff has three strikes. A court “‘may take 12 notice of proceedings in other courts, both within and without the federal judicial system, 13 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 14 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 15 Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 16 Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court again takes judicial notice that 17 Plaintiff, while incarcerated, has brought at least three prior civil actions which have been 18 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 19 which relief may be granted. See 28 U.S.C. § 1915(g). They are: 20 1) White v. Ulstad, No. 2:13-cv-02459-UA-VBK (C.D. Cal. May 20, 2013) 21 (Order dismissing action as frivolous, malicious and fails to state a claim upon 22 which relief may be granted) (strike one); 23 2) White v. Soto, No. 2:13-cv-02751-UA-VBK (C.D. Cal. June 18, 2013) (Order 24 dismissing action as frivolous, malicious and fails to state a claim upon which 25 relief may be granted) (strike two); 26 27 28 3) White v. City and County of San Francisco No. 3:15-cv-03256-JD (N.D. Nov. 17, 2015) (Order dismissing action for failing to state a claim) (strike three). 3 18cv576 1 Because Plaintiff has three strikes, the Court has once again carefully reviewed 2 Plaintiff’s FAC and has ascertained that it does not contain “plausible allegations” which 3 suggest he “faced ‘imminent danger of serious physical injury’ at the time of filing.” 4 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. §1915(g)). Plaintiff claims that the 5 Defendants have not provided him with copies of court documents which “may prolong 6 Plaintiff’s imprisonment to face imminent danger of serious physical injury.” (FAC at 3.) 7 The fact that Plaintiff is in prison, and may stay there longer than he feels he should be is 8 insufficient to find that he faces any imminent danger of serious physical injury at the time 9 he filed this action. 10 Accordingly, because Plaintiff has, while incarcerated, accumulated at least the three 11 “strikes” permitted pursuant to § 1915(g), and he fails to make a “plausible allegation” that 12 he faced imminent danger of serious physical injury at the time he filed his FAC, he is not 13 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 14 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 15 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 16 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 17 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 18 itself a matter of privilege and not right.”). The Court will not accept any further amended 19 pleadings in this matter. If Plaintiff wishes to proceed with the claims that he sets forth in 20 his Complaint or his FAC, he must file a separate action, along with the $400 initial civil 21 filing fee required by 28 U.S.C. §1914(a). 22 III. CONCLUSION & ORDER 23 For the reasons set forth above, the Court hereby: 24 (1) 25 26 27 28 DENIES Plaintiff’s renewed Motion to Proceed IFP (ECF Doc. No. 8) as barred by 28 U.S.C. §1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failure to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a). 4 18cv576 1 (3) DENIES Plaintiff’s Motion to Appoint Counsel (ECF Doc. No. 10) as moot. 2 (4) DIRECTS the Clerk of Court to close the file once more; and 3 (5) Advises Plaintiff that any documents he seeks to file in this case will be 4 5 6 rejected. IT IS SO ORDERED. DATED: April 11, 2018 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 18cv576

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