Green v. Covello

[6] 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA [9] 10 MICHAEL GREEN, Case No.: 3:19-cv-01747-JAH-MSB aka KEVIN DEAN BREWER, [11] CDCR #AC-5033, ORDER: [12] Plaintiff, 1) DENYING MOTION TO [13] vs. PROCEED IN FORMA PAUPERIS 14 AS BARRED BY 28 U.S.C. § 1915 (g) [ECF No. 4] [15] PATRICK COVELLO, et al., 16 Defendants. AND [17] (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE [19] REQUIRED BY 28 U.S.C. § 1914 (a) [22] 23 Plaintiff, Michael Green also known as Keven Dean Brewer, currently incarcerated 24 at Richard J. Donovan Correctional Facility (“RJD”), in San Diego, California, has filed a 25 civil rights Complaint pursuant to 42 U.S.C. § 1983 . See Compl., ECF No. 1. He has not 26 prepaid the full civil filing fee required by 28 U.S.C. § 1914 (a); instead, he has filed a 27 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 4). [28] 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. 6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 7 installments” or “increments” as provided by 28 U.S.C. § 1915 (a)(3)(b), the Prison 8 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 9 proceed IFP in cases where the prisoner: 10 . . . 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 [11] dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 12 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. [14] 28 U.S.C. § 1915 (g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113 , 1116 n.1 (9th Cir. 2005). “Pursuant to 16 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 17 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 18 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 19 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 20 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 21 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 22 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 23 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 24 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 25 styles such dismissal as a denial of the prisoner’s application to file the action without 26 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 27 When courts “review a dismissal to determine whether it counts as a strike, the style of the 28 dismissal or the procedural posture is immaterial. Instead, the central question is whether 1 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El2 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 3 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 4 action,” however, courts may “assess a PLRA strike only when the case as a whole is 5 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147 , 1152 6 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 7 Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 10 danger of serious physical injury.” See 28 U.S.C. § 1915 (g); Cervantes, 493 F.3d at 1051 - 11 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 13 B. Discussion 14 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915 (g)). Plaintiff has failed 17 to allege any facts sufficient to plausibly meet § 1915(g)’s exception for imminent danger. 18 See Cervantes, 493 F.3d at 1055-56 (plaintiff must allege to face a real, proximate and/or 19 ongoing danger at the time of filing). 20 And while Defendants typically carry the initial burden to produce evidence 21 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119 , “in 22 some instances, the district court docket may be sufficient to show that a prior dismissal 23 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 24 1120. That is the case here. 25 / / / 26 / / / 27 / / / 28 / / / 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 2 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937 , *2 (S.D. Cal. Jan. 22, 2009) (citing 3 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 4 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 5 notice of proceedings in other courts, both within and without the federal judicial system, 6 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 7 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801 , 803 n.2 (9th 8 Cir. 2002)). 9 Based on a review of its own dockets and other court proceedings available on 10 PACER, the Court finds that Plaintiff Michael Green, also known as Keven Dean Brewer, 11 identified as CDCR Inmate #AC-5033, while incarcerated, has had four prior civil actions 12 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 13 which relief may be granted. 14 They are: 15 (1) Brewer v. Alta Bates Summit Medical Center, et al. Civil Case No. 3:08cv-03149-SI (N.D. Cal. Jan. 26, 2009) (Order dismissing action for failing to [16] state a claim pursuant to 28 U.S.C. §1915A) (ECF No. 24) (strike one): [17] (2) Brewer v. Alta Bates Summit Medical Center, et al., Civil Case No. 3:1118 cv-02703-THE (N.D. Cal. Oct. 20, 2011) (Order dismissing action for failing 19 to state a claim pursuant to 28 U.S.C. § 1915A) (ECF No. 16) (strike two); [20] (3) Brewer v. Oh, et al., Civil Case No. 5:15-cv-00877-MWF-AJW (C.D. 21 Cal. May 8, 2015) (Order denying request to proceed IFP based on finding complaint was frivolous, malicious, and failed to state a claim) (ECF No. 4) [22] (strike three)1; [26] 27 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“A prisoner may not avoid incurring strikes simply by declining to take advantage of [an] opportunity to amend.”). [28] 1 (4) Green v. Hathaway, et al., Civil Case No. 2:17-cv-01598-MCE-CKD (E.D. Cal. Oct. 1, 2018) (Order adopting report and recommendation dismissing second amended complaint for failing to state a claim) (strike 3 four). [4] 5 Accordingly, because Plaintiff has, while incarcerated, accumulated at least four 6 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 5 imminent danger of serious physical injury at the time he filed his Complaint, he is not g entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055 ; 9 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915 (g) “does not prevent all 10 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 1 the legal system from continuing to abuse it while enjoying IFP status’’); see also Franklin 12 ||": Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 13 itself a matter of privilege and not right.”’). 14 II. Conclusion and Orders 15 For the reasons set forth above, the Court: 16 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 4) as barred by 28 U.S.C. 7 § 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 1g || Prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914 (a); (3) 19 CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. 20 § 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 71 IT IS SO ORDERED. 9 Dated: December 6, 2019 | Hh : ML => 23 John A. Houston Ynited States District Judge