Jerome L. Grimes, et al. v. Inglewood Memorial Cemetery, et al.

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 JEROME L. GRIMES, et al., ) Case No. 2:25-cv-08211-HDV-JDE ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION 13 v. ) PURSUANT TO 28 U.S.C. § 1915 (g) ) 14 INGLEWOOD MEMORIAL ) ) CEMETERY, et al., ) [15] ) Defendants. ) [16] 17 On August 20, 2025, Jerome L. Grimes (“Plaintiff”), a detainee at Larry 18 D. Smith Correctional Facility in Banning, California, proceeding pro se and 19 seeking leave to proceed in forma paupers (“IFP”) (Dkt. 2), filed a civil 20 complaint in the United States District Court for the Northern District of 21 California (“NDCA”) on his own behalf and on behalf of three deceased 22 persons, asserting claims against several defendants. Dkt. 1 (“Complaint”). 23 The NDCA transferred the action to this District. Dkt. 6. 24 In the Complaint, Plaintiff refers to a previous lawsuit in the NDCA 25 against Nathanial Johnson. Complaint at 11 (CM/ECF pagination). A review 26 of the NDCA electronic docket reveals a case, Jerome L. Grimes v. Rolando 27 Yip and Nathanial “Nathan” Johnson, Case No. 3:12-cv-03689-JSW (“NDCA 28 Action”), filed on December 18, 2012, and dismissed on January 9, 2013. The 1 Order of Dismissal in that case reflects that it was dismissed, along with eleven 2 other cases filed by Plaintiff under the “three-strikes” provision of 28 U.S.C. 3 § 1915(g) because he had been advised he was ineligible to proceed IFP while 4 incarcerated, noting that since he had first been advised of that ineligibility, 5 “Plaintiff has continued to file hundreds of civil rights actions seeking [IFP] 6 status,” with each of those actions having been dismissed without prejudice to 7 Plaintiff re-filing upon payment of the applicable filing fee. NDCA Action, 8 Dkt. 3 (“Prior NDCA Three Strikes Order”) at 1-2. 9 On September 26, 2025, the magistrate judge issued an Order referencing 10 the Prior NDCA Three Strikes Order, noting the law governing 28 U.S.C. 11 § 1915(g), noting that it appeared Plaintiff had suffered three prior strikes and 12 was not under imminent danger of serious physical injury, and ordering him to 13 show cause in writing why the action should not be dismissed under Section 14 1915(g) or pay the full filing fee within 21 days. Dkt. 10 (“OSC”). Plaintiff did 15 not file a timely response to the OSC or pay the filing fee. 16 Under 28 U.S.C. § 1915 (g), a “prisoner,” defined under § 1915(h) to 17 include pretrial detainees, is prohibited from “bring[ing] a civil action or 18 appeal” IFP if the prisoner: 19 has, on 3 or more prior occasions, while incarcerated or detained in 20 any facility, brought an action . . . in a court of the United States 21 that was dismissed on the grounds that it is frivolous, malicious, or 22 fails to state a claim upon which relief may be granted, unless the 23 prisoner is under imminent danger of serious physical injury. 24 Section 1915(g) “is commonly known as the ‘three strikes’ provision. 25 “‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, 26 which were dismissed ‘on the ground that[they were] frivolous, malicious, or 27 fail[] to state a claim . . . .” Andrews v. King, 398 F.3d 1113 , 1116 n.1 (9th Cir. 28 2005) (as amended) (first two alterations in original). 1 Section 1915(g) provides a narrow exception permitting a prisoner who 2 has had three prior “strikes” but who is in “imminent danger of serious physical 3 injury” to proceed despite the strikes. 28 U.S.C. § 1915 (g); see also Lopez v. 4 Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). “Imminent danger of 5 serious physical injury must be a real, present threat, not merely speculative or 6 hypothetical.” Blackman v. Mjening, 2016 WL 5815905 , at *1 (E.D. Cal. Oct. 7 4, 2016). A plaintiff must make “specific fact allegations of ongoing serious 8 physical injury, or a pattern of misconduct evidencing the likelihood of 9 imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048 , 1050 (8th 10 Cir. 2003). “[V]ague and utterly conclusory assertions” of imminent danger are 11 insufficient. White v. Colorado, 157 F.3d 1226 , 1231–32 (10th Cir. 1998); see 12 also Martin, 319 F.3d at 1050 (“conclusory assertions” are “insufficient to 13 invoke the exception to §1915(g)”). The “imminent danger” exception is 14 available “for genuine emergencies,” where “time is pressing” and “a threat . . . 15 is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 16 Courts may raise Section 1915(g) sua sponte. See Andrews, 398 F.3d at 17 1120; see also Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011) 18 (courts “may raise the issue of strikes sua sponte”); Fabricant v. Harbison, [19] 2021 WL 5921470 , at *2 (C.D. Cal. Sept. 1, 2021) (“Courts may raise 20 § 1915(g) sua sponte.”), accepted by 2022 WL 103187 (C.D. Cal. Jan. 11, 21 2022). Once the court notifies a plaintiff that his case may be subject to 22 dismissal under Section 1915(g), the plaintiff bears the ultimate burden of 23 persuading the court that Section 1915(g) does not apply. Andrews, 398 F.3d 24 at 1120. “A dismissal under Section 1915(g) is without prejudice to a plaintiff 25 refiling his civil rights complaint after prepayment of the full filing fee.” 26 Hernandez v. Ventura Cty., 2010 WL 5313476 , at *2 (C.D. Cal. Nov. 16, 27 2010) adopted by 2010 WL 5315438 (C.D. Cal. Dec. 15, 2010). [28] 1 Here, the docket of the NDCA, of which this Court takes judicial notice, 2 including those cases referenced in the Prior NDCA Three Strikes Order, 3 reflects at least three prior civil actions or appeals filed by Plaintiff while 4 incarcerated that resulted in dismissal for being frivolous, malicious, or failing 5 to state a claim upon which relief may be granted. 6 As Plaintiff, a “prisoner,” has had at least three prior civil actions he 7 commenced as a prisoner dismissed as frivolous, malicious, or for failing to 8 state a claim upon which relief may be granted, this action is subject to 9 dismissal under 28 U.S.C. § 1915 (g). Further, the Complaint does not allege 10 that Plaintiff is under imminent danger of serious physical injury due to the 11 allegations in the Complaint. The OSC, issued on September 26, 2025, 12 provided Plaintiff an opportunity to be heard on the foregoing or to pay the full 13 filing fee within 21 days, but Plaintiff neither responded to the OSC nor paid 14 the filing fee with the time permitted. This action must be dismissed under 28 15 U.S.C. § 1915 (g). 16 Accordingly, IT IS HEREBY ORDERED THAT: 17 1. The IFP Request (Dkt. 2) is DENIED; 18 2. Plaintiff’s Complaint is DISMISSED without prejudice to refiling 19 after prepayment of the full filing fee; and 20 3. Judgment shall be entered accordingly. [21] Dated: _11/5/25 _________ ____________________________ [22] HERNÁN D. VERA 23 United States District Judge