Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WILBUR LANN PITTMAN, Case No. 26-cv-00225-BJC-MMP CDCR #BW-6431, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) M. HAJEMANN, CCI Correctional [ECF No. 2] 16 Counselor, et al., 17 Defendants. AND 18 (2) DISMISSING CIVIL ACTION 19 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 20 REQUIRED BY 28 U.S.C. § 1914(a) 21 22 Plaintiff Wilbur Lann Pittman, a prisoner at California Substance Abuse Treatment 23 Facility (“SATF”) in Corcoran, California, proceeding without counsel, filed a civil rights 24 complaint pursuant to 42 U.S.C. § 1983, together with a motion to proceed in forma 25 pauperis (“IFP”), in the Eastern District of California on January 8, 2026. See ECF No. 1 26 (“Compl.”); ECF No. 2 (“IFP”). Because Plaintiff seeks to sue officials at the California 27 Department of Corrections and Rehabilitation’s Male Community Reentry Program 28 (“MCRP”) in San Diego, and all Defendants are alleged to be employed at MCRP in San 1 Diego, United States Magistrate Judge Barbara A. McAuliffe determined Plaintiff’s claims 2 arose in the Southern District of California and transferred his case here pursuant to 28 3 U.S.C. § 1406(a). See ECF No. 3. 4 However, Plaintiff’s litigation history precludes him from the privilege of 5 proceeding IFP, and he fails to allege he faces imminent danger. Therefore, the Court 6 DENIES Plaintiff’s IFP motion and DISMISSES the case without prejudice. 7 I. IFP MOTION 8 A. Legal Standard 9 All parties instituting any civil action, suit, or proceeding in a district court of the 10 United States, except an application for writ of habeas corpus, must pay a filing fee of 11 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 12 although the administrative fee does not apply to persons granted leave to proceed IFP. 13 See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 14 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 15 prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. 16 § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). 17 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 18 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 19 . . . 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 20 States that was dismissed on the grounds that it is frivolous, malicious, or fails 21 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 22 23 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 24 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 25 “Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 26 pursuing any other IFP action in federal court unless he can show he is facing ‘imminent 27 danger of serious physical injury.’” Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s 28 exception for IFP complaints which “make[] a plausible allegation that the prisoner faced 1 ‘imminent danger of serious physical injury’ at the time of filing.’”). “Strikes are prior 2 cases or appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the 3 ground that (they were) frivolous, malicious, or fail[ed] to state a claim,” Andrews, 398 4 F.3d at 1116 n.1, “even if the district court styles such dismissal as a denial of the prisoner’s 5 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 6 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to determine 7 whether it counts as a strike, the style of the dismissal or the procedural posture is 8 immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells of 9 frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 10 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 11 B. Analysis 12 Defendants typically carry the initial burden to produce evidence demonstrating a 13 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 14 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 15 under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. This is one 16 of those instances, as a review of Plaintiff’s district court dockets confirms he is no longer 17 eligible to proceed IFP because while incarcerated, he has had more than three prior 18 prisoner civil actions dismissed for a “qualifying reason” under § 1915(g). Hoffman v. 19 Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019). Pursuant to Federal Rule of Evidence 20 201(b)(2), this Court may take judicial notice of the docket records in Plaintiff’s prior 21 cases. See Andrews, 398 F.3d at 1120; United States v. Raygoza -Garcia, 902 F.3d 994, 22 1001 (9th Cir. 2018) (“A court may take judicial notice of undisputed matters of public 23 record, which may include court records available through PACER.”). 24 The following records are sufficient to show Plaintiff has seven qualifying strikes: 25 (1) Pittman v. Van Stralen, et al., Case No. 5:08-cv-01747-UA-PLA (C.D. Cal. Dec. 16, 2008) (Order denying leave to file action without 26 prepayment of filing fees and finding complaint to be “legally and/or 27 patently frivolous” pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 7 at 1–3); 28 1 (2) Pittman v. Martel, Case No. 5:08-cv-01899-UA-PLA (C.D. Cal. Jan. 14, 2009) (Order denying leave to file action without prepayment of 2 filing fees and finding complaint to be “legally and/or patently 3 frivolous” pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 5 at 1–3); 4 (3) Pittman v. Stacie, Case No. 5:08-cv-01900-UA-PLA (C.D. Cal. Jan. 14, 5 2009) (Order denying leave to file action without prepayment of filing fee and finding complaint to be “legally and/or patently frivolous” 6 pursuant to 28 U.S.C. § 1915(e)(2)) (ECF No. 5 at 1–3); 7 (4) Pittman v. Pearson, et al., Case No. 2:08-cv-02805-FCD-DAD (E.D. 8 Cal. April 6, 2009) (Order and Findings and Recommendations [“F&Rs”] to dismiss action for failure to state a claim pursuant to 28 9 U.S.C. § 1915A(b)(1) and (2)) (ECF No. 4 at 1–3); id., 2009 WL 10 1456552, at *1 (E.D. Cal. May 22, 2009) (Order adopting F&Rs) (ECF No. 5); 11 12 (5) Pittman v. Blindzius, Case No. 2:08-cv-02809-JAM-DAD (E.D. Cal. April 6, 2009) (Order and F&Rs to dismiss action for failure to state a 13 claim pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3 at 1–3); id. 14 (E.D. Cal. June 24, 2009) (Order adopting F&Rs) (ECF No. 4); 15 (6) Pittman v. Grannis, Case No. 2:08-cv-02806-JAM-DAD (E.D. Cal. 16 April 6, 2009) (Order granting IFP and dismissing complaint for failing to state a claim pursuant to 28 U.S.C. § 1915A(b) with leave to amend) 17 (ECF No. 3); id., (E.D. Cal. May 21, 2009) (Order and F&Rs to dismiss 18 for failing to amend/comply with court order) (ECF No. 4 at 1); id., (E.D. Cal. July 21, 2009) (Order adopting F&Rs) (ECF No. 5 at 2);1 19 and 20 (7) Pittman v. Pearson, Case No. 2:08-cv-0213-LKK-DAD (E.D. Cal. 21 April 6, 2009) (Order and F&Rs to dismiss action for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)(1)) (ECF No. 3 at 1–3); id., 22 (E.D. Cal. July 31, 2009) (Order adopting F&Rs) (ECF No. 4 at 1–2). 23 / / / 24 25 26 1 See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (finding that a failure to 27 amend does “not negate the determination already made by the Court that the complaint [plaintiff] had filed . . . failed to state a claim.”). “A prisoner may not avoid incurring 28 1 Because Plaintiff accumulated these prior strike dismissals while incarcerated, he 2 may not proceed IFP in this case unless he meets § 1915(g)’s “imminent danger” 3 exception.2 To do so, his pleadings must contain a “plausible allegation that [he] faced 4 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 5 1055 (quoting U.S.C. § 1915(g)). Imminent danger requires plausible allegations of harm 6 “ready to take place,” or “hanging threateningly over one’s head,” id. at 1056, and must 7 also “stem[] from the violations of law alleged in [the] complaint.” Ray v. Lara, 31 F.4th 8 692, 701 (9th Cir. 2022). The exception “functions as a limited safety valve,” id., but it 9 “cannot be triggered solely by complaints of past injury or generalized fears of possible 10 future harm.” Hernandez v. Williams, No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at 11 *2 (S.D. Cal. Apr. 8, 2021). 12 Plaintiff’s Complaint fails to include any plausible allegations of imminent or 13 ongoing physical danger whatsoever. Instead, Plaintiff, who is now incarcerated at SATF, 14 claims MCRP officials in San Diego either lost or stole his property, including $977 in 15 cash and two checks in the amount of $1,957. See Compl. at 3, 6. Civil actions seeking 16 “only financial redress for allegedly lost property” clearly do not qualify for § 1915(g)’s 17 imminent danger exception. See e.g., Valentine v. USP Victorville, No. 5:25-CV-03050- 18 SVW-JDE, 2026 WL 194574, at *2 (C.D. Cal. Jan. 23, 2026) (finding Federal Tort Claims 19 Act suit barred by § 1915(g)); Braley v. Hicks, No. 1:23-CV-0206-JLT-SAB PC, 2023 WL 20 4089118, at *1 (E.D. Cal. June 20, 2023) (finding prisoner’s allegations “address[ing] the 21 loss of personal property” did not satisfy the “‘imminent danger of serious physical injury’ 22 exception to Section 1915(g).”). 23 24 25 2 In fact, Plaintiff has been denied IFP privileges pursuant to § 1915(g) in this Court since 2009. See Pittman v. Kenndy, et al., Case No. 3:09-cv-0544-JAH-RBB (S.D. Cal. May 6, 26 2009) (Order denying motion to proceed IFP pursuant to 28 U.S.C. § 1915(g) and 27 dismissing civil action) (ECF No. 8 at 3–4). Judge Houston’s Order further notes that as of November 2008, Plaintiff had filed “more than 100 civil rights actions in the Central, 28 Therefore, the Court finds Plaintiff is not entitled the privilege to proceed IFP in this 2 ||case. See Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984). “A negative 3 || consequence that may impact a prisoner who files [] frivolous complaint[s] is a restriction 4 [his] ability to file future cases without prepaying filing fees.” Harris, 863 F.3d at 1139. 5 || Because Plaintiff did not pay the full $405 statutory and administrative filing fee required 6 || by 28 U.S.C. § 1914(a) at the time he filed this case, his litigation history shows he is no 7 || longer eligible to proceed IFP, and he does not allege to have faced imminent danger of 8 || serious physical injury at the time of filing, his suit must be dismissed. See Hymas v. U.S. 9 || Dep’t of the Interior, 73 F Ath 763, 765 (9th Cir. 2023) (“[W]here [an] IFP application 1s 10 || denied altogether, Plaintiff's case [cannot] proceed|[.]”). 11 CONCLUSION 12 For these reasons, the Court DENIES Plaintiff's Motion to Proceed IFP (ECF No. 13 ||2) as barred by 28 U.S.C. § 1915(g); DISMISSES this civil action without prejudice based 14 |/on Plaintiff's failure to pay the full $405 civil filing fee required by 28 U.S.C. § 1914(a); 15 ||} CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. 16 1915(a)(3), and DIRECTS the Clerk of Court to close the case. 17 IT IS SO ORDERED. 18 || Dated: April 2, 2026 Oar C4 2 fea 19 Honorable’Benjamin J. Cheeks 0 United States District Judge 21 22 23 24 25 26 27 28 6