Jones v. Hanks

1 WO 2 MW [5] IN THE UNITED STATES DISTRICT COURT [6] FOR THE DISTRICT OF ARIZONA [8] Elvis Wayne Jones, No. CV-19-00848-PHX-DLR (JZB) [9] Plaintiff, [10] v. ORDER [11] George C. Hanks, Jr., et al., [12] Defendants. [14] 15 Plaintiff Elvis Wayne Jones, who is confined in the Texas Department of Criminal 16 Justice-Allan B. Polunsky Unit in Livingston, Texas, has filed a pro se civil rights 17 Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), an Application to Proceed In Forma 18 Pauperis (Doc. 9), and four miscellaneous filings, docketed as a Notice (Doc. 6) and 19 Motions (Docs. 7, 8, 11). The Court will deny the Application to Proceed, dismiss the 20 Complaint and this action, and deny the remaining filings as moot. 21 I. Dismissal Pursuant to 28 U.S.C. § 1915 (g) 22 The Prison Litigation Reform Act of 1995 (PLRA), enacted on April 26, 1996, 23 provides that a prisoner may not bring a civil action or appeal a civil judgment in forma 24 pauperis (“IFP”) if: 25 the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 26 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 27 upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. [1] 28 U.S.C. § 1915 (g). This is “commonly known as the ‘three strikes’ provision.” Andrews 2 v. King, 398 F.3d 1113 , 1116 n. 1 (9th Cir. 2005). 3 A. Three Strikes 4 “[I]n determining a § 1915(g) ‘strike,’ the reviewing court looks to the dismissing 5 court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th 6 Cir. 2013). “In some instances, the district court docket records may be sufficient to show 7 that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore 8 counts as a strike.” Andrews, 398 F.3d at 1120 . “[T]he style of the dismissal or the 9 procedural posture is immaterial. Instead, the central question is whether the dismissal 10 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” Harris v. 11 Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (quoting El-Shaddai v. Zamora, 833 F.3d 12 1036, 1042 (9th Cir. 2016)). See Knapp, 738 F.3d at 1110 (dismissal of appeal as “‘not 13 taken in good faith,’… has been held to be equivalent to a finding of frivolity” and counts 14 as strike); O’Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008) (section 1915(g) does “not 15 distinguish between dismissals with and without prejudice”). 16 The public electronic case information system for the United States Courts reveals 17 that to date, Plaintiff has filed more than 50 civil actions in federal court, exclusive of, and 18 in addition to, numerous appeals and habeas proceedings.1 Among those civil actions, 19 three or more have been dismissed as frivolous, malicious, or for failure to state a claim 20 and count as “strikes” under § 1915(g). Such actions include, but are not limited to: 21 Jones v. Texas Corrections Corporate of America, No. 3:14cv-00379 (S.D. Tex. Feb. 8, 2016) (dismissed as frivolous, for 22 failure to state a claim, and barred by § 1915(g)). 23 Jones v. City of Austin, No. 3:09-cv-00077-JWS (D. Alaska May 12, 2009) (dismissed as frivolous and for failure to state a 24 claim). 25 Jones v. Beaumont Judicial Court, No. 1:98-cv-01472-RASESH (E.D. Tex. Feb. 24, 1999) (adopted R&R and dismissed 26 as frivolous). [28] 1 See Public Access to Court Electronic Records (PACER), https://www.pacer.gov/. [1] Jones v. West, No. 1:97-cv-00685-HC-ESH (E.D. Tex. Feb. 2 17, 1999) (adopted R&R and “dismissed as frivolous and for failure to state a claim upon which relief may be granted”). [3] Jones v. Beaumont Judicial Court, No. 1:98-cv-01473-TH 4 (E.D. Tex. Feb. 25, 1998) (dismissed as repetitious). 5 Jones v. West, No. 1:96-cv-00532-KFG (E.D. Tex. Sep. 18, 1997) (dismissed action involving claims of a “communist 6 ploy” as frivolous). [7] 8 Plaintiff has been notified repeatedly that he is subject to the PLRA’s three-strike 9 provision and been provided repeated opportunities to demonstrate that his dismissals 10 should not bar him from proceeding in forma pauperis under § 1915(g). For example: 11 Jones v. Commissioner C. Overstreet, No. 4:19-cv-02455 (S.D. Tex. Jul. 15, 2019) (dismissed pursuant to § 1915(g)). [12] Jones v. Overstreet, No. 4:19-cv-02454 (S.D. Tex. Jul. 10, 13 2019) (dismissed pursuant to § 1915(g)). 14 Jones v. U.S. National Federal Debt Contractors, No. 4:18cv215–WS/CAS, 2018 WL 2435612 (N.D. Fla. May 30, 15 2018) (adopted R&R and dismissed pursuant to § 1915(g)), affirmed on appeal by Jones v. U.S. National Federal Debt 16 Contractors, No. 18-12570-D, 2019 WL 2567721 (11th Cir. Feb. 13, 2019) (found, on review of his “motion challenging 17 the district court’s application of the three-strikes provision,” that the “record reflect[ed] that Jones previously filed three 18 suits, all of which were dismissed as frivolous”). 19 Jones v. The Texas U.S. District Courts Judges, No. 18-40111 (5th Cir. Feb. 15, 2018) (required payment of the appellate 20 docketing fee because Plaintiff “had 3 or more cases dismissed as frivolous”). [21] Jones v. The Texas U.S. District Courts Judges, No. 9:17-cv22 00183-RC-KFG (E.D. Tex. Mar. 27, 2018) (adopted R&R and dismissed pursuant to § 1915(g)). [23] Jones v. TDC Polunsky Disciplinary Capts., No. 9:18-cv24 00006-RC-ZJH (E.D. Tex. Apr. 26, 2018) (adopted R&R and dismissed pursuant to § 1915(g)). [25] Jones v. Texas, No. 7:08-cv-00196-O (N.D. Tex. Nov. 26, 26 2008) (dismissed pursuant to § 1915(g)). 27 Jones v. Hampton, No. 7:05-cv-00112-R (N.D. Tex. Jun. 23, 2005) (dismissed under § 1915(g)). [1] Jones v. Allred Unit, No. 7:05-cv-00084-R (N.D. Tex. Apr. 28, 2 2005) (dismissed pursuant to § 1915(g)). 3 Jones v. Johnson, No. 1:00-cv-00623-JRN (W.D. Tex. Nov. 8, 2000) (dismissed pursuant to § 1915(g)). [4] Jones v. Texas TDCJ ID Admin., No. 2:12-cv-00019-JAW, [5] 2012 WL 646234 (D. Me. Feb. 28, 2012) (adopted R&R and dismissed pursuant to § 1915(g)). [6] Jones v. Morales, No. 9:10-cv-00089-DWM-JCL, 2010 WL 7 3614073 (D. Mont. Sep. 8, 2010) (adopted R&R and dismissed pursuant to § 1915(g)). [8] Jones v. 1996 Texas Attorney General, No. 1:09-cv-000799 JMS-BMK (D. Haw. Feb. 29, 2009) (dismissed pursuant to § 1915(g)). [10] 11 Accordingly, Plaintiff has “three strikes” and may not bring a civil action without 12 complete prepayment of the $350.00 filing fee and $50.00 administrative fee unless he is 13 in imminent danger of serious physical injury. 28 U.S.C. § 1915 (g). 14 B. Imminent Danger Exception 15 To meet the exception under § 1915(g), the complaint must “make[] a plausible 16 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 17 of filing.” Andrews, 493 F.3d at 1055 (quoting § 1915(g)). The “threat or prison condition 18 [must be] real and proximate,” Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) 19 (quoting Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002)), and the allegations must be 20 “specific or credible.” Kinnell v. Graves, 265 F.3d 1125, 1128 (10th Cir. 2001). See Taylor 21 v. Watkins, 623 F.3d 483, 485 (7th Cir. 2010) (although courts “should not attempt to 22 evaluate the seriousness of a plaintiff’s claims,” courts are not required to “blindly accept 23 a prisoner’s allegations of imminent danger.”). 24 Plaintiff does not make a credible or coherent allegation that he is in imminent 25 danger of serious physical injury. In his Complaint, Plaintiff sues United States District 26 Judge George C. Hanks, Jr., retired United States Magistrate Judge Earl S. Hines, the 27 United States Congress, and the United States Judicial Conference. Although his 28 allegations are largely incomprehensible, Plaintiff appears to allege: (1) the federal courts 1 || are engaging in an unlawful monitoring program and conspire to deprive him of access to 2|| the courts; (2) he has been defrauded by the in forma pauperis statute(s); (3) “gang[] || enemf[ies]” are monitoring his in forma pauperis affidavits and case dockets for “sensitive 4}| information” to steal his identity and defraud him of money; and (4) prison employees || monitor his commissary and enforce “illegal state budget cuts” to steal money from his 6 || account. These allegations, liberally construed, simply do not satisfy the imminent danger 7\| exception § 1915(g). See Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). 8 Accordingly, the Court will deny Plaintiff’s Application to Proceed In Forma Pauperis and will dismiss Plaintiffs Complaint and this action, without prejudice, pursuant || to § 1915(g). If Plaintiff wishes to reassert these claims in the future, he may do so by 11 || commencing a new case and prepaying the $400.00 filing and administrative fees at the time of filing his action in federal court. 13] IT IS ORDERED: 14 (1) Plaintiff's Application to Proceed In Forma Pauperis (Doc. 9) is denied. 15 (2) Plaintiff's Complaint (Doc. 1) and this action are dismissed as barred 16 || pursuant to 28 U.S.C. § 1915 (g), without prejudice to Plaintiff filing a complaint in a new case accompanied by full payment of the $400.00 filing and administrative fees at the time of filing. 19 (3) To the extent Plaintiff seeks relief therein, his miscellaneous Notice and 201} Motions (Docs. 6, 7, 8, 11) are denied as moot. 21 (4) The Clerk of Court must enter judgment accordingly and terminate this case. 22 Dated this 26th day of July, 2019. 23 - Loe’ Kean a 25 ~DougiasL. Rayes United States District Judge [28] _5-