Allen v. Villanueva

Filing 6

ORDER: Denying Motion to Proceed in Forma Pauperis as Barred by 28 U.S.C. § 1915(g) [ECF No. 2 ] and Dismissing Civil Action without Prejudice for Failure to Pay Filing Fee Required by 28 U.S.C. § 1914(a). Signed by Judge William Q. Hayes on 2/16/2021. (All non-registered users served via U.S. Mail Service)(ag)

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Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.31 Page 1 of 6 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 MICHAEL DEWAYNE ALLEN, CDCR #T-55834, Plaintiff, 13 14 Case No.: 3:20-cv-02334-WQH-WVG vs. 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF No. 2] 15 16 17 18 19 20 ORDER: VINCENT VILLANUEVA, Defendant. AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 21 22 Plaintiff, Michael Dewayne Allen, currently incarcerated at Richard J. Donovan 23 Correctional Facility (“RJD”), in San Diego, California, has filed a civil rights Complaint 24 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) 25 Plaintiff claims RJD Correctional Officer Villanueva came to his cell on November 26 7, 2020, handcuffed him, and “grabbed [his] right butt cheek.” (Id. at 3.) Plaintiff seeks 27 $17.2 million in compensatory and punitive relief. (Id. at 7.) 28 3:20-cv-02334-WQH-WVG Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.32 Page 2 of 6 1 Plaintiff did not pay the full civil filing fee required by 28 U.S.C. § 1914(a) at the 2 time he filed suit; instead, he filed a Motion to Proceed In Forma Pauperis (“IFP”). (See 3 ECF No. 2.) 4 I. Motion to Proceed IFP 5 A. 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 8 an additional hurdle.” Id. Standard of Review 9 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 10 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 11 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 12 proceed IFP in cases where the prisoner: 13 14 15 16 . . . 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. 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 19 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 20 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 21 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 22 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 23 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 24 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 25 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 26 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 27 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 28 styles such dismissal as a denial of the prisoner’s application to file the action without 3:20-cv-02334-WQH-WVG Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.33 Page 3 of 6 1 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 2 When courts “review a dismissal to determine whether it counts as a strike, the style of the 3 dismissal or the procedural posture is immaterial. Instead, the central question is whether 4 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 5 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 6 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 7 action,” however, courts may “assess a PLRA strike only when the case as a whole is 8 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 9 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 10 Cir. 2016)). 11 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 12 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 13 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 14 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 15 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 16 B. 17 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 18 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 19 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Plaintiff claims 20 Defendant “grabbed [his] right butt cheek,” see Compl. at 3. but offers no other factual 21 allegations of any concerns of future harm. Such conclusory references to a past incident 22 of force, without more, are insufficient to plausibly suggest Plaintiff faced an “imminent 23 danger of serious physical injury” at the time he filed his Complaint. See Cervantes, 493 24 F.3d at 1055-56 (plaintiff must allege to face a real, proximate and/or ongoing danger at 25 the time of filing); Cohea v. Davey, No. 1:19-CV-01281-LJO-SAB (PC), 2019 WL 26 5446490, at *1 (E.D. Cal. Oct. 24, 2019) (finding prisoner’s allegations of past assaults 27 insufficient to show “imminent danger” under 1915(g)), reconsideration denied, No. 1:19- 28 CV-01281-NONE-SAB (PC), 2020 WL 5763929 (E.D. Cal. Sept. 28, 2020). Discussion 3:20-cv-02334-WQH-WVG Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.34 Page 4 of 6 1 “Although prison can undoubtedly be a dangerous place, incarceration alone does 2 not satisfy the requirement of ‘imminent danger of serious physical injury’” for purposes 3 of § 1915(g). Parker v. Montgomery Cty. Corr. Facility/Bus. Office Manager, 870 F.3d 4 144, 154 n.12 (3d Cir. 2017). “Indeed, if it did, every prisoner would be entitled to IFP 5 status and the exception would swallow the rule.” Id. (citation omitted); see also Patrick v. 6 Altshuler, No. 2:17-CV-1046 AC P, 2017 WL 4539273, at *5 (E.D. Cal. Oct. 11, 2017) 7 (finding prisoner’s claims of “[f]ear with trust issues” and “painful” “[a]buse[s] of power” 8 were insufficient to demonstrate he was “under imminent danger of serious physical 9 injury” under § 1915(g)). 10 And while Defendants typically carry the initial burden to produce evidence 11 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 12 some instances, the district court docket may be sufficient to show that a prior dismissal 13 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 14 1120. 15 That is the case here. 16 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 17 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 18 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 19 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 20 notice of proceedings in other courts, both within and without the federal judicial system, 21 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 22 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 23 Cir. 2002)). 24 Based on a review of its own dockets and other court proceedings publicly available 25 on PACER, the Court finds that Plaintiff Michael Dewayne Allen, identified as CDCR 26 Inmate #T-55834, while incarcerated, has had three prior civil actions dismissed on the 27 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 28 may be granted. 3:20-cv-02334-WQH-WVG Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.35 Page 5 of 6 1 They are: 2 1) Allen v. Social Security Administration, Civil Case No. 2:11-cv-04253UA-E (C.D. Cal. June 22, 2011) (Order Denying Leave to File Action Without Prepayment of Full Filing Fee and dismissing Complaint as frivolous, malicious, or for failing to state a claim upon which relief may be granted) (ECF No. 2 at 1) (strike one); 3 4 5 2) Allen v. CSP – Los Angeles Count, et al., Civil Case No. 2:12-cv-08338DMG-E (C.D. Cal. Dec. 12, 2012) (Order Dismissing Complaint for failing to state a claim) (ECF No. 7); and (C.D. Cal. May 1, 2013) (Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge and dismissing civil action based on Plaintiff’s failure to amend)1 (ECF No. 12) (strike two); and 6 7 8 9 10 3) Allen v. Masemeno, et al., Civil Case No. 2:12-cv-09981-DMG-E (C.D. Cal. Nov. 26, 2013) (Order Dismissing First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)) (ECF No. 15); and (C. D. Cal. Feb. 20, 2014) (Order Accepting Findings, Conclusions and Recommendations of United States Magistrate Judge and dismissing civil action based on Plaintiff’s failure to amend) (ECF No. 19) (strike three). 11 12 13 14 15 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 16 17 18 19 20 21 22 23 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced imminent danger of serious physical injury at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes prisoners with a history of abusing the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 24 25 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 1 26 27 28 3:20-cv-02334-WQH-WVG Case 3:20-cv-02334-WQH-WVG Document 6 Filed 02/16/21 PageID.36 Page 6 of 6 1 permission to proceed IFP is itself a matter of privilege and not right.”).2 2 II. Conclusion and Orders 3 For the reasons discussed, the Court: 4 (1) 5 U.S.C. § 1915(g); 6 7 (2) DISMISSES this civil action sua sponte without prejudice for failing to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 8 9 DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. § 1915(a)(3); and 10 (4) 11 IT IS SO ORDERED. 12 DIRECTS the Clerk of the Court to close the file. Dated: February 16, 2021 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 In fact, Plaintiff has been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in this Court, as well as in the Eastern District of California, on at least four previous occasions. See, e.g., Allen v. Associate Warden, et al., S.D. Cal. Civil Case No. 3:20-cv02188-GPC-BLM (ECF No. 5); Allen v. Quillen, et al., S.D. Cal. Civil Case No. 3:20-cv02192-MMA-DEB (ECF No. 7); Allen v. Wells, et al., E.D. Cal. Civil Case No. 2:17-cv01793-MCE-EFB (ECF Nos. 11, 12, 13); and Allen v. Perez, E.D. Cal. Civil Case No. 2:17-cv-01384-TLN-EFB (ECF Nos. 14, 15, 16). 3:20-cv-02334-WQH-WVG

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