Wilson v. Palomino

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 Teddy LeRoy WILSON, Jr., Case No. 25-cv-1346-AGS-MSB 5 Plaintiff, ORDER DENYING MOTION TO 6 v. PROCEED IN FORMA PAUPERIS (ECF 2) AND DISMISSING THE 7 COMPLAINT PALAMINO, et al., 8 Defendants. 9 10 11 Teddy LeRoy Wilson, Jr., an inmate suing defendants for civil-rights violations 12 under 42 U.S.C. § 1983, moves to proceed in forma pauperis. For the reasons below, that 13 motion is denied, and the complaint is dismissed without prejudice. 14 DISCUSSION 15 Typically, parties instituting a civil action in a United States district court must 16 prepay $405 in fees, including a $350 filing fee and a $55 administrative fee. See 28 U.S.C. 17 § 1914(a); Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 18 (eff. Dec. 1, 2023). “An action may proceed despite failure to pay the filing fees only if the 19 party is granted” leave to proceed in forma pauperis. Rodriguez v. Cook, 169 F.3d 1176, 20 1177 (9th Cir. 1999). Prisoners like Wilson, however, “face an additional hurdle.” See 21 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). To further “the 22 congressional goal of reducing frivolous prisoner litigation in federal court,” prisoners 23 cannot proceed IFP once they “have, while incarcerated, on 3 or more prior occasions had 24 claims dismissed due to their frivolity, maliciousness, or failure to state a claim.” Tierney 25 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997) (cleaned up); see also 28 U.S.C. § 1915(g) 26 (“In no event shall a prisoner bring a civil action under this [IFP] section . . . if the prisoner 27 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 28 an action . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to 1 state a claim upon which relief may be granted, unless the prisoner is under imminent 2 danger of serious physical injury.”). 3 When courts review a dismissal to determine whether it counts as one of these three 4 strikes, “the style of the dismissal or the procedural posture is immaterial” because “the 5 central question is whether the dismissal rang the PLRA [Prison Litigation Reform Act] 6 bells of frivolous, malicious, or failure to state a claim.” El-Shaddai v. Zamora, 833 F.3d 7 1036, 1042 (9th Cir. 2016) (cleaned up). Prior cases are considered strikes, then, “even if 8 the district court styles such dismissal as a denial of the prisoner’s application to file the 9 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 10 (9th Cir. 2008). Defendants typically carry the initial burden to produce evidence 11 demonstrating a prisoner is not entitled to proceed IFP for having three strikes, but “in 12 some instances, the district court docket may be sufficient to show that a prior dismissal 13 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” 14 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 15 This Court has previously found that “Wilson, while incarcerated, has had three prior 16 prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed 17 to state a claim upon which relief may be granted, rendering him ineligible to proceed IFP.” 18 Wilson v. Edmonson, No. 23-cv-0605-AGS-MSB, 2023 WL 4535533, at *1 (S.D. Cal. 19 July 13, 2023) (listing strikes); see also United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 20 1980) (holding that “a court may take judicial notice of its own records in other cases, as 21 well as the records of [different courts] in other cases”); see also Fed. R. Evid. 201(b)(2) 22 (“The court may judicially notice a fact that is not subject to reasonable dispute because it 23 can be accurately and readily determined from sources whose accuracy cannot reasonably 24 be questioned.”). 25 Nor does Wilson meet the “imminent danger of serious physical injury” exception 26 under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 27 to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 28 1047, 1056 (9th Cir. 2007) (cleaned up). It “cannot be triggered solely by complaints of 1 ||past injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 2 ||21cv347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned up). 3 || Wilson’s complaint is based on allegations that defendants “fil[ed] false and or fraudulent 4 ||criminal charges” that resulted in his “false arrest[]” and “false imprison[ment].” (ECF 1, 5 || at 5.) Nothing in his complaint satisfies the imminent-danger exception. 6 CONCLUSION 7 Thus, Wilson’s motion to proceed in forma pauperis is DENIED as barred due to 8 three strikes under 28 U.S.C. § 1915(g), and the action is DISMISSED WITHOUT 9 || PREJUDICE for failure to pay the required fees. The Clerk of Court is directed to close 10 || this case. The Court also “certifies in writing” that an in forma pauperis appeal of this Order 11 || would be frivolous and “not taken in good faith.” 28 U.S.C. § 1915(a)(3). 12 || Dated: July 9, 2025 13 Z | f. 14 Andrew G. Schopler United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 a ee