Stevens v. CDCR Director

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Dean M. STEVENS, Case No.: 25-cv-0191-AGS-AHG 4 Plaintiff, ORDER DENYING APPLICATION 5 v. TO PROCEED IN FORMA PAUPERIS (ECF 2), DISMISSING 6 CDCR DIRECTOR, et al., COMPLAINT, AND CLOSING CASE 7 Defendants. 8 9 After unrepresented state prisoner Dean M. Stevens sued defendants in the wrong 10 district, the case was transferred here. For the reasons below, Stevens’s application to 11 proceed in forma pauperis is denied, and his case is dismissed. 12 DISCUSSION 13 Typically, parties instituting a civil action in a United States district court must pay 14 filing fees of $405.1 See 28 U.S.C. § 1914(a). “An action may proceed despite failure to 15 pay the filing fees only if the party is granted IFP status.” Rodriguez v. Cook, 169 F.3d 16 1176, 1177 (9th Cir. 1999). Prisoners like Stevens, however, “face an additional hurdle.” 17 Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Inmates may 18 not proceed in forma pauperis “if the prisoner has, on 3 or more prior occasions, while 19 incarcerated or detained in any facility, brought an action or appeal . . . that was dismissed 20 on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 21 be granted, unless the prisoner is under imminent danger of serious physical injury.” Id. 22 (quoting 28 U.S.C. § 1915(g)). 23 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional 27 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative fee 28 1 When courts review a dismissal to determine whether it counts as one of these three 2 strikes, “the style of the dismissal or the procedural posture is immaterial” because “the 3 central question is whether the dismissal rang the PLRA [Prison Litigation Reform Act] 4 bells of frivolous, malicious, or failure to state a claim.” El-Shaddai v. Zamora, 833 F.3d 5 1036, 1042 (9th Cir. 2016) (cleaned up). Prior cases are considered strikes, then, “even if 6 the district court styles such dismissal as denial of the prisoner’s application to file the 7 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 8 (9th Cir. 2008). Defendants typically carry the initial burden to produce evidence 9 demonstrating a prisoner is not entitled to proceed IFP for having three strikes, but “in 10 some instances, the district court docket may be sufficient to show that a prior dismissal 11 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” 12 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 13 Stevens, while incarcerated, has filed at least 17 civil actions, and at least three of 14 his cases were dismissed on the grounds that they were frivolous, malicious, or failed to 15 state a claim upon which relief may be granted. See United States v. Wilson, 631 F.2d 118, 16 119 (9th Cir. 1980) (holding that “a court may take judicial notice of its own records in 17 other cases, as well as the records of [different courts] in other cases.”). The three strikes 18 are: (1) Stevens v. Cox, No. 95-cv-04454-FMS (N.D. Cal. Dec. 20, 1995), ECF 2 (Order 19 denying IFP and dismissing complaint with leave to amend), and (N.D. Cal. Jan. 31, 1996), 20 ECF 5 (Order dismissing case for failure to amend)2 (strike one); (2) Stevens v. Baker, No. 21 12-cv-02519-SBA (N.D. Cal., July 18, 2012), ECF 5 (Order dismissing amended 22 complaint with leave to amend), and (N.D. Cal. Feb. 6, 2013), ECF 12 (Order dismissing 23 case for failure to amend) (strike two); and (3) Stevens v. Colheen, No. 12-cv-03276-SBA 24 25 26 2 “[W]hen (1) a district court dismisses a complaint on the ground that it fails to state 27 a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).” Harris v. Mangum, 28 1 || (N.D. Cal. July 18, 2012), ECF 3 (Order dismissing case for failing to state a cognizable 2 ||claim pursuant to 28 U.S.C. § 1915A(b)(1)) (strike three). 3 Nor does Stevens meet the “imminent danger of serious physical injury” exception 4 ||under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 5 || to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 6 || 1047, 1056 (9th Cir. 2007) (cleaned up). It “cannot be triggered solely by complaints of 7 injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 8 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned up). 9 ||Stevens seeks $60 million in damages from unidentified CDCR dental officials for 10 || allegedly providing him sub-par dentures while he was incarcerated at Richard J. Donovan 11 Correctional Facility in March 2024. (See ECF 1 at 3.) Nothing in his complaint satisfies 12 || the imminent-danger exception. See, e.g., Stephens v. Newsome, No. 2:22-CV-1583 AC P, 13 || 2023 WL 3956715, at *2 (E.D. Cal. May 25, 2023) (finding prison’s failure to provide 14 || plaintiff with dental implants did not “present an imminent danger of serious physical 15 || harm” sufficient to qualify for § 1915(g) exception), report and recommendation adopted 16 WL 4109775 (E.D. Cal. June 21, 2023). 17 CONCLUSION 18 Thus, Stevens’s application to proceed in forma pauperis (ECF 2) is DENIED as 19 barred by 28 U.S.C. § 1915(g). The action is DISMISSED WITHOUT PREJUDICE for 20 || failure to pay the statutory and administrative $405 civil filing fees required by 28 U.S.C. 21 1914(a). The Clerk of Court is directed to close this case. The Court also “certifies in 22 || writing” that an in forma pauperis appeal of this Order would be frivolous and “not taken 23 ||in good faith.” 28 U.S.C. § 1915(a)(3). 24 || Dated: May 8, 2025 26 Hon. Andrew G. Schopler United States District Judge 28 3 □□