Tony Blackman v. Brown et al

Filing 5

ORDER dismissing civil action without prejudice for failure to pay filing fee required by 28 USC 1914(a). Signed by Judge Janis L. Sammartino on 11/20/2018.(All non-registered users served via U.S. Mail Service)(jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,
CDCR #V-22349,

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

Plaintiff,

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vs.

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Case No.: 3:18-CV-00965 JLS (KSC)

JERRY BROWN, et al.,
Defendants.

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Plaintiff Tony Blackman, currently incarcerated at Richard J. Donovan Correctional

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Facility (“RJD”) in San Diego, California, and proceeding pro se, filed a civil rights

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Complaint pursuant to 42 U.S.C. § 1983 in the Eastern District of California on May 9,

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2018, naming the Governor of California, several state court appellate judges, a Director

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of Corrections, and approximately 100 various RJD correctional and inmate appeals

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officials as Defendants. See Compl., ECF No. 1.

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I.

Procedural History

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On May 15, 2018, United States Magistrate Judge Stanley A. Boone determined that

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Plaintiff’s suit challenges the conditions of his confinement at RJD; therefore, he

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transferred the action to the Southern District of California pursuant to 28 U.S.C. § 1406(a).

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See ECF No. 2. Judge Boone noted, however, that Plaintiff had not paid the civil filing fee
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required to commence a civil action when he filed suit in the Eastern District, had not filed

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a Motion to Proceed In Forma Pauperis (“IFP”), and previously had been precluded from

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proceeding IFP pursuant to 28 U.S.C. § 1915(g). Id. at 2.

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II.

Failure to Pay Filing Fee or Request IFP Status

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All parties instituting any civil action, suit, or proceeding in a district court of the

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United States, except an application for writ of habeas corpus, must pay a filing fee of

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$400. See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to

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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.

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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) (“Cervantes”);

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Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). The Prison Litigation Reform

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Act’s (“PLRA”) amendments to section 1915, however, require that every prisoner who is

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granted leave to proceed IFP pay the entire fee in “increments” or “installments,” Bruce v.

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Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182,

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1185 (9th Cir. 2015), regardless of whether their action is ultimately dismissed. See 28

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U.S.C. §§ 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

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Section 1915(a)(2) requires all persons seeking to proceed without full prepayment

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of fees to submit an affidavit that includes a statement of all assets possessed and

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demonstrates an inability to pay. See Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th

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Cir. 2015). In support of this affidavit, prisoners must also submit a “certified copy of the

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trust fund account statement (or institutional equivalent) for . . . the 6-month period

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immediately preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v.

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King, 398 F.3d 1113, 1119 (9th Cir. 2005) (“King”). From the certified trust account

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statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits

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in the account for the past six months, or (b) the average monthly balance in the account

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for the past six months, whichever is greater, unless the prisoner has no assets. See 28

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U.S.C. §§ 1915(b)(1), (4). The institution having custody of the prisoner then collects

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subsequent payments, assessed at 20% of the preceding month’s income, in any month in

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which his account exceeds $10, and forwards those payments to the Court until the entire
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filing fee is paid. See 28 U.S.C. § 1915(b)(2); Bruce, 136 S. Ct. at 629.

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As Judge Boone noted, Plaintiff did not pay the filing fee required to commence a

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civil action when he filed suit in the Eastern District of California, and he has yet to file a

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Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(a) in this Court. Therefore, Plaintiff’s

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case cannot proceed. See 28 U.S.C. § 1914(a); Cervantes, 493 F.3d at 1051. And while

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this Court would typically grant Plaintiff leave to file an IFP Motion, it agrees with Judge

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Boone’s conclusion that Plaintiff has abused that privilege and is therefore precluded from

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doing so by 28 U.S.C. § 1915(g), unless he contends to have faced “imminent danger of

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serious physical injury” at the time of filing. He makes no such claims here.

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III.

28 U.S.C. § 1915(g)’s “Three-Strikes” Bar

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“All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty.

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Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). “Prisoners,” however, “face an

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additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a filing

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fee” in installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation Reform

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Act (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP in cases

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where the prisoner

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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).

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provision.” King, 398 F.3d at 1116 n.1. “Pursuant to § 1915(g), a prisoner with three

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strikes or more cannot proceed IFP.” Id.; see also Cervantes, 493 F.3d at 1052 (under the

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PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred

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from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further

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“the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney

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v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

“This subdivision is commonly known as the ‘three strikes’

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

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were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”

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King, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles

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such dismissal as a denial of the prisoner’s application to file the action without prepayment

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of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a

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prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing

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any other IFP action in federal court unless he can show he is facing “imminent danger of

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serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52 (noting

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section 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that

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the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”).

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Plaintiff’s Complaint is practically illegible but, as far as the Court can decipher, he

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appears to allege RJD officials have “wrongfully rejecte[ed],” “confiscated,” and cancelled

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his grievances, see ECF No. 1 at 2, 7, and have refused to “double-cell” him with white,

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black, or Mexican inmates “in his weight division,” based on their “extreme fear of losing

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the[ir] power.” Id. at 7, 9. In other portions of his pleading, Plaintiff claims that state

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appellate judges have “obstructed justice” with respect to his “habeas corpus appeal

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restraining order” and have conspired with the State’s Governor, Department of

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Corrections, and RJD prison and appeals officials to “cover up [his] false imprisonment.”

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Id. at 8.

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Based on these claims, it is clear that Plaintiff does not allege he “faced ‘imminent

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danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055

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(quoting 28 U.S.C. § 1915(g)); see also Sierra v. Woodford, No. 1:07 cv 00149 LJO GSA

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(PC), 2010 WL 1657493, *3 (E.D. Cal. Apr. 23, 2010) (finding “long, narrative, rambling

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statements regarding a cycle of violence, and vague references to motives to harm”

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insufficient to show that Plaintiff faced an “ongoing danger” as required by Cervantes).

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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, King, 398 F.3d at 1119, “in some instances, the district court docket

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may be sufficient to show that a prior dismissal satisfies at least one on the criteria under
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§ 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, No. 3:05-cv-

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00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States

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v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); see also Gerritsen v. Warner Bros.

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

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proceedings in other courts, both within and without the federal judicial system, if those

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proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212,

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1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.

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2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,

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971 F.2d 244, 248 (9th Cir. 1992).

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Thus, this Court takes judicial notice that Plaintiff, Tony Blackman, identified as

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CDCR Inmate #V-22349, has had at least six prior prisoner civil actions dismissed on the

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grounds that they were frivolous, malicious, or failed to state a claim upon which relief

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may be granted. They are:

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1.

Findings and Recommendations (“F&R”) re Dismissal of Action, Blackman

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v. Hartwell, No. 1:99-CV-05822 REC (HGB) (E.D. Cal. Jan. 19, 2001), ECF No. 9 at 2

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(“[T]he court recommends dismissal of the claims made in the original complaint with

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prejudice for failure to state a federal claim upon which the court could grant relief.”);

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Order (Mar. 12, 2001), ECF No. 10 at 2 (adopting F&R “in full” and dismissing action “for

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failure to state a claim upon which relief can be granted”) (strike one);

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2.

Order of Dismissal Without Leave to Amend Pursuant to 28 U.S.C. § 1915A,

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Blackman v. Medina, No. 3:05-CV-05390 SI (N.D. Cal. Mar. 13, 2006), ECF No. 5 at 5

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(“[N]either the complaint nor the amended complaint state a claim upon which relief may

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be granted.”) (strike two);

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3.

Order of Dismissal per 28 U.S.C. § 1915A, Blackman v. Variz, No. 3:06-CV-

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06398 SI (N.D. Cal. Dec. 18, 2006), ECF No. 5 at 5 (“[N]either the complaint nor the

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amended complaint state a claim upon which relief may be granted.”) (strike three);

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///
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4.

F&R to Dismiss Action, Blackman v. Taxdahl, No. 1:04-CV-06389 AWI

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(LJO) (E.D. Cal. Feb. 27, 2007), ECF No. 8 at 5 (recommending dismissal without leave

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to amend for “fail[ure] to state a claim for relief under section 1983”); Order Adopting

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F&R (E.D. Cal. May 18, 2007), ECF No. 9 (adopting F&R “in full” and “Dismissing Entire

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Action”) (strike four);

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5.

Order of Dismissal per 28 U.S.C. § 1915A, Blackman v. Mantel, No. 3:07-

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CV-02609 SI (N.D. Cal. Sept. 5, 2007), ECF No. 4 at 4 (“[T]his action is dismissed without

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leave to amend because the complaint fails to state a claim upon which relief may be

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granted.”) (strike five); and

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Order Dismissing Action, Blackman v. Evans, No. 1:06-CV-00081 GSA (E.D.

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Cal. Feb. 3, 2009) (dismissing action with prejudice “based on plaintiff’s failure to state

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any claims upon which relief may be granted under section 1983”), ECF No. 18 at 2 (strike

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six).

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

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“strikes” pursuant to section 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.”). 1

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In fact, the Court notes that, since accumulating the strikes identified above, Plaintiff has since been
denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) on seven other previous occasions in the
Southern District of California alone. See Blackman v. Dizon, No. 3:17-CV-02472 AJB (BGS) (S.D. Cal.
Dec. 12, 2017), ECF No. 6; Blackman v. Brachamoute, No. 3:17-CV-01331 JAH (BLM) (S.D. Cal.
Sept. 27, 2017), ECF No. 7; Blackman v. Voong, No. 3:17-CV-01562 LAB (KSC) (S.D. Cal. Aug. 18,
2017), ECF No. 7; Blackman v. Brown, No. 3:17-CV-01404 BTM (NLS) (S.D. Cal. Aug. 3, 2017), ECF
No. 7; Blackman v. Brachamonte, No. 3:17-CV-00545 BEN (RBB) (S.D. Cal. June 20, 2017), ECF No.
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IV.

Conclusion and Order
For the reasons discussed, the Court:
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DISMISSES WITHOUT PREJUDICE this action for failure to pay the full

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

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would not be frivolous); and

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3.

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IT IS SO ORDERED.

DIRECTS the Clerk of the Court to close the file.

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Dated: November 20, 2018

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11; Blackman v. Bracamonte, No. 3:17-CV-00059 LAB (JLB) (S.D. Cal. June 15, 2017), ECF No. 3;
Blackman v. Brachamonte, No. 3:17-CV-00389 MMA (AGS) (S.D. Cal. June 13, 2017), ECF No. 7.
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