Napper v. San Diego County Sheriffs Dept. et al

Filing 4

Order: 1) Denying Motion to Proceed in Forma Pauperis [Ecf No. #2 ] and Dismissing Complaint Pursuant to 28 U.S.C. 1915(g) 2) Denying Motion to Appoint Counsel [Ecf No. #3 ] As Moot. Signed by Judge Anthony J. Battaglia on 2/17/2021. (All non-registered users served via U.S. Mail Service)(jrm)

Case 3:21-cv-00100-AJB-AGS Document 4 Filed 02/17/21 PageID.52 Page 1 of 5

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ERNEST NAPPER, Jr.,

Case No.: 3:21-cv-00100-AJB-AGS
Plaintiff,

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ORDER:

vs.

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1) DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
[ECF No. 2] AND DISMISSING
COMPLAINT PURSUANT TO
28 U.S.C. § 1915(g)

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SAN DIEGO COUNTY SHERIFF’S
DEPT., VISTA DETENTION
FACILITY,
Defendant.

2) DENYING MOTION TO APPOINT
COUNSEL [ECF No. 3] AS MOOT

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Ernest Napper, Jr. (“Plaintiff”), currently incarcerated at George Baily Detention

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Facility (“GBDF”), has filed a pro se civil rights action pursuant 42 U.S.C. § 1983. (See

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ECF No. 1.) Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at

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the time of filing. He has instead filed a Motion to Proceed In Forma Pauperis (“IFP”)

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pursuant to 28 U.S.C. §1915(a). (See ECF No. 2.) He has also filed a Motion to Appoint

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Counsel. (ECF No. 3.)

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I.

Motion to Proceed In Forma Pauperis

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A.

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“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 Napper, however, “face

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

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filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.

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§ 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to

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preclude the privilege to proceed IFP in cases where the prisoner:

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Standard of Review

. . . 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.
28 U.S.C. § 1915(g).

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“This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v.

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King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to § 1915(g), a prisoner with

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three strikes or more cannot proceed IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d

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1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (stating that under the PLRA,

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

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

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

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

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

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

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

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When courts “review a dismissal to determine whether it counts as a strike, the style of the

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dismissal or the procedural posture is immaterial. Instead, the central question is whether
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the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-

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Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738

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F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single

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action,” however, courts may “assess a PLRA strike only when the case as a whole is

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dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152

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(9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th

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Cir. 2016)).

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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 F.3d

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1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th

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Cir. 2002)). Therefore, this Court finds, based on a review of its own dockets and other

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court proceedings available on PACER, that Plaintiff Ernest Napper, Jr. has had three prior

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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) Napper v. Wong, Civil Case No. 2:08-cv-03826-UA-AN (C.D. Cal., West. Div.,

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July 1, 2008 Order denying IFP and dismissing case as “frivolous” and for “failure to state

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a claim on which relief can be granted” pursuant to 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii)

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[ECF No. 2]) (strike one);

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2) Napper v. Wong, el al., Civil Case No. 2:09-cv-03446-UA-AN (C.D. Cal., West.

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Div., July 2, 2009 Order denying IFP and dismissing case as “frivolous” and for “failure

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to state a claim upon which relief may be granted” pursuant to 28 U.S.C. § 1915(e)(2)(A),

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(B)(i)-(iii) [ECF No. 2]) (strike two);

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3) Napper v. Haws, et al., Civil Case No. 2:09-cv-04063-UA-AN (C.D. Cal., West.

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Div., Aug. 19, 2009, Order dismissing case as “frivolous” and “for failure to state a claim

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upon which relief may be granted” pursuant to 28 U.S.C. § 1915(e)(2)(A), (B)(i)-(iii) [ECF

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No. 3]) (strike three).

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Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit

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of any subsequent IFP civil action or appeal in federal court unless he faces “imminent

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

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52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation

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

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The Court has reviewed Plaintiff’s complaint and concludes it contains no “plausible

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

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time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). In count one,

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Napper alleges that the Defendants failed to take him a video hearing on a restraining order.

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Compl. at 3-6. In count two, he contends he gave an envelope containing confidential

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information which was marked “legal mail” to a jail employee for mailing, but the letter

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was instead left in a common area of the jail. Compl. at 7-10. In count three, Napper alleges

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Defendants refused to process grievances or make copies of legal documents. Compl. at

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11-12. These allegations do not rise to the level of “imminent danger of serious physical

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injury.” See Cervantes, 493 F.3d at 1055.

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Accordingly, because Napper has, while incarcerated, accumulated at least three

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“strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced

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imminent danger of serious physical injury at the time he filed his Complaint, he is not

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entitled to the privilege of proceeding IFP in this action. See id.; Rodriguez, 169 F.3d at

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1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the

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

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continuing to abuse it while enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d

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1221, 1231 (9th Cir. 1984) (stating that “court permission to proceed IFP is itself a matter

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of privilege and not right”).
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II.

Conclusion and Orders

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Good cause appearing, the Court:

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1.

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DENIES the Motion to Proceed IFP pursuant to 28 U.S.C. Section 1915(g)

[ECF No. 2];
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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);

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3.

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The Clerk of Court is directed to close the file.

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IT IS SO ORDERED.

DENIES the Motion to Appoint Counsel [ECF No. 3] as moot.

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Dated: February 17, 2021

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