Jones v. Oceanside Police Department

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 25-cv-1089-BAS-JLB CDCR #BU-7712, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AND DISMISSING COMPLAINT 14 PURSUANT TO 28 U.S.C. § 1915(g)

15 OCEANSIDE POLICE DEPARTMENT, (ECF No. 2) 16 VISTA SUPERIOR COURT, 17 Defendants. 18 19 20 Wayne Elijah Jones (“Plaintiff”), currently incarcerated at R.J. Donovan 21 Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights action pursuant 22 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff did not prepay the civil filing fee required by 28 23 U.S.C. § 1914(a) at the time of filing. He has instead filed a certified copy of his inmate 24 trust account statement, which this Court liberally construes as a request to proceed in 25 forma pauperis (“IFP”) pursuant to 28 U.S.C. §1915(a). (ECF No. 2.) 26 REQUEST TO PROCEED IFP 27 All parties instituting any civil action, suit or proceeding in a district court of the 28 United States, except an application for writ of habeas corpus, must pay a filing fee of 1 $350, and those not granted leave to proceed IFP must pay an additional administrative fee 2 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 3 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s 4 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 5 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); see also 6 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 7 A. “Three Strikes” Provision 8 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 9 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 10 . . . if [a] prisoner 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 11 States that was dismissed on the grounds that it is frivolous, malicious, or fails 12 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 13 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). 16 “Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 17 pursuing any other IFP action in federal court unless he can show he is facing “imminent 18 danger of serious physical injury.” See 28 U.S.C. § 1915(g); see also Cervantes, 493 F.3d 19 at 1055 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 20 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 21 of filing.”) “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 22 which were dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to 23 state a claim,” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such 24 dismissal as denial of the prisoner’s application to file the action without prepayment of 25 the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts 26 “review a dismissal to determine whether it counts as a strike, the style of the dismissal or 27 the procedural posture is immaterial. Instead, the central question is whether the dismissal 28 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 1 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 2 615 (4th Cir. 2013)). 3 While defendants typically carry the initial burden to produce evidence 4 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 5 court docket records may be sufficient to show that a prior dismissal satisfies at least one 6 of the criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. 7 That is the case here. 8 B. Prior “Strikes” 9 A court “‘may take notice of proceedings in other courts, both within and without 10 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 11 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 12 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court 13 finds that Plaintiff Wayne Elijah Jones, currently identified as California Department of 14 Corrections and Rehabilitation Inmate #BU-7712, while incarcerated, has had at least four 15 prior civil actions dismissed on the grounds that they were frivolous, malicious, or failed 16 to state a claim upon which relief may be granted. 17 They are: 18 (1) Jones v. Peng, et al., No. 21-cv-1912-MMA-BLM (S.D. Cal. May 12, 2022) 19 (Order Granting Motion to Proceed IFP, Dismissing Complaint with Leave to 20 Amend for Failure to State a Claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 21 1915A(b) (ECF No. 11)) (May 12, 2022, Order Dismissing Action (ECF No. 22 12)) (strike one); 23 (2) Jones v. Peng, et al., No. 22-55543 (9th Cir. Nov. 17, 2022) (Order Revoking 24 IFP and Dismissing Appeal as Frivolous (ECF No. 24)) (strike two); 25 (3) Jones v. Cal. Gov’t Claims Program, et al., No. 23-cv-1256-WQH-DDL (S.D. 26 Cal. Aug. 21, 2023) (Order Dismissing Case for Failure to State a Claim 27 pursuant to 28 U.S.C. §1915A (ECF No. 7)) (strike three); 28 1 (4) Jones v. Wasco State Prison, No. 23-cv-0543-JLT-BAM (E.D. Cal. Sept. 15, 2 2023) (Findings and Recommendation (“F&R”) to Dismiss Civil Action for 3 Failure to State a Claim (ECF No. 22)); (Order Adopting F&R and Dismissing 4 Action (ECF No. 23)) (strike four). 5 Accordingly, Plaintiff has accumulated at least four “strikes” as defined by 6 § 1915(g). 7 C. Imminent Danger of Serious Physical Injury 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 The Court has reviewed Plaintiff’s Complaint and concludes it contains no “plausible 14 allegations” to suggest Jones faced “‘imminent danger of serious physical injury’ at the 15 time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Rather, he 16 seeks money damages for retaliatory and defamatory actions. (ECF No. 1 at 1–10.) 17 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 18 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 19 imminent danger of serious physical injury at the time he filed his Complaint, he is not 20 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 21 see also Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 22 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 23 prisoners with a history of abusing the legal system from continuing to abuse it while 24 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 25 (stating that “court permission to proceed [IFP] is itself a matter of privilege and not right”). 26 27 28 l CONCLUSION 2 Good cause appearing, the Court: 3 1. DENIES Plaintiff's Request to Proceed IFP pursuant to 28 U.S.C. § 1915(g) 4 || (ECF No. 2), 5 2. DISMISSES this civil action sua sponte without prejudice for failing to 6 || prepay the $405 civil and administrative filing fees required by 28 U.S.C. § 1914(a), 7 3. CERTIFIES that an IFP appeal from this Order would not be taken in good 8 || faith pursuant to 28 U.S.C. §1915(a)(3), and 9 4. DIRECTS the Clerk of the Court to close the file. 10 IT IS SO ORDERED. 11 12 || DATED: May 2, 2025 yatta Bahar 13 H¢én. Cynthia Bashant, Chief Judge 4 United States District Court 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _5- □□□□□□□□