Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICKY ALLAN OLSON, Case No.: 26cv1540-LL-DDL 12 Plaintiff, ORDER: 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) RHIANNON GORHAM, CCA PRIVATE [ECF No. 2]; 16 PRISON, ALICE P. SECHEAL, PETER 17 D. WELTE, (2) DISMISSING CIVIL ACTION PURSUANT TO 28 U.S.C. § 1914(a) 18 Defendants. AND FOR FAILURE TO STATE A 19 CLAIM UNDER 28 U.S.C. § 1915A(b)(1); 20 21 (3) DENYING PENDING MOTIONS AS MOOT [ECF Nos. 3–8, 11] 22 23 24 Plaintiff Ricky Allan Olson, an unrepresented prisoner currently housed at Cass 25 County Jail in Fargo, North Dakota,1 has filed a civil rights action. ECF No. 1. Plaintiff has 26 27 1 The Court takes judicial notice of Plaintiff’s criminal case filed in the United States 28 1 also filed a motion to proceed in forma pauperis (“IFP”) [ECF No. 2], along with several 2 other miscellaneous motions. See ECF Nos. 3–11. As discussed below, the Court denies 3 Plaintiff’s IFP motion, dismisses the action, and denies the other pending motions as moot. 4 IFP MOTION 5 Generally, parties initiating a civil action in a district court of the United States must 6 pay a filing fee of $405. See 28 U.S.C. § 1914(a). An action may proceed despite a failure 7 to pay the entire fee at filing only if the court grants the plaintiff leave to proceed IFP 8 pursuant to 28 U.S.C. § 1915(a). 9 A. Three Strikes Provision 10 Under the Prison Litigation Reform Act (“PLRA”), however, when a prisoner 11 seeking to proceed IFP has “repeatedly brought unsuccessful suits [he] may entirely be 12 barred from IFP status under the three-strikes rule,” pursuant to 28 U.S.C. § 1915(g). 13 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Specifically, a prisoner who 14 has had three previous actions dismissed as frivolous, malicious, or for failure to state a 15 claim, is prohibited from pursuing any other IFP action in federal court unless he can show 16 he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). 17 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 18 were dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to state a 19 claim,” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005), “even if the district 20 court styles such dismissal as a denial of the prisoner’s application to file the action without 21 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 22 When courts “review a dismissal to determine whether it counts as a strike, the style of the 23 dismissal or the procedural posture is immaterial. Instead, the central question is whether 24 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 25 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 26 F.3d 607, 615 (4th Cir. 2013)). 27 While Defendants typically carry the initial burden of demonstrating a prisoner is 28 not entitled to IFP status, “in some instances, the district court docket may be sufficient to 1 show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore 2 counts as a strike.” Andrews, 398 F.3d at 1120. That is the case here. 3 B. Prior “Strikes” 4 A court “‘may take notice of proceedings in other courts, both within and without 5 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 6 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 7 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 8 Plaintiff has been in federal custody for some time, primarily in North Dakota. Based 9 on a review of court proceedings available on PACER, the Court finds that while 10 incarcerated, Plaintiff Ricky Allan Olson, BOP #06512-059, has had at least three prior 11 civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state 12 a claim upon which relief may be granted. They are: 13 1) Olson v. Fargo Sheriff, et al., Case No. 25-cv-0201-PDW-ARS (D.N.D.) (Report and Recommendation to dismiss complaint for failure to state a claim 14 dismiss (ECF No. 15, Nov. 7, 2025); Id. (Order adopting R & R and dismissing 15 complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A (ECF No. 21, Dec. 2, 2025)); 16 17 (2) Olson v. Van de Streek, et al., Case No. 25-cv-0218-PDW-ARS, ECF No. 5 (D.N.D.) (Report and Recommendation to dismiss complaint for failure to 18 state a claim dismiss (ECF No. 17, Nov. 7, 2025); Id. (Order adopting R & R 19 and dismissing complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A (ECF No. 23, Dec. 2, 2025)); 20 21 (3) Olson v. Cass County Sheriff., Case No. 3:23-cv-0179-PDW-ARS (D.N.D.) (Report and Recommendation recommending complaint be dismissed in its 22 entirety for failure to state a claim and failure to prosecute by filing amended 23 pleading) (ECF No. 62, Mar. 28, 2024)); Id. (Order adopting R & R and dismissing complaint) (ECF No. 64, May 8, 2024)). 2 24 25 26 27 2 A dismissal counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, 28 1 Thus, Plaintiff has accumulated at least three “strikes” as defined by § 1915(g). 2 C. Imminent Danger Exception 3 Once a prisoner has accumulated three or more strikes, § 1915(g) prohibits his 4 pursuit of any subsequent IFP civil action or appeal in federal court unless he faces 5 “imminent danger of serious physical injury.” Cervantes, 493 F.3d at 1055; Rodriguez, 169 6 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from 7 accessing the courts; it only precludes prisoners with a history of abusing the legal system 8 from continuing to abuse it while enjoying IFP status”). Here, Plaintiff makes no allegation 9 of imminent danger of serious physical injury. The allegations contained in the Complaint 10 appear related only to Plaintiff’s temporary transfer to Southern California for a mental 11 health evaluation and the loss of legal materials during that transfer. See ECF No. 1 at 3. 12 Plaintiff makes no plausible assertion that he was facing danger at the time he initiated this 13 action. See Cervantes, 493 F.3d at 1056 (stating the imminent danger exception requires 14 an allegation that a harm is “ready to take place”). Therefore, Plaintiff’s IFP motion is 15 DENIED pursuant to 28 U.S.C. § 1915(g) and the case is DISMISSED for failure to 16 satisfy the filing fee requirement. See 28 U.S.C. § 1914(a). 17 SCREENING PURSUANT TO 28 U.S.C. § 1915A 18 A. Standard of Review 19 Even if Plaintiff were to pay the full filing fee, his Complaint would be dismissed 20 for failure to state a claim. Under 28 U.S.C. § 1915A, also enacted by the PLRA, a Court 21 must sua sponte dismiss a prisoner complaint, or any portion of it, which is “frivolous, 22 malicious, or fails to state a claim upon which relief may be granted,” or that “seeks 23 monetary relief from a defendant who is immune.” 28 U.S.C. § 1915A(b)(1), (2). The 24 mandatory screening provisions of § 1915A apply to all prisoners, no matter their fee 25 / / / 26 27 was dismissed with or without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142–43 (9th 28 1 status, who bring suit against a governmental entity, officer, or employee. See, e.g., Resnick 2 v. Hayes, 213 F.3d 443, 446‒47 (9th Cir. 2000). 3 B. Plaintiff’s Allegations 4 In his Complaint, Olson appears to allege he was improperly transferred to Southern 5 California for mental health observation and during that time, his legal materials were 6 “stolen.” See ECF No. 1 at 4. He names as Defendants: Rhiannaon Gorham, his federal 7 defender; “CCA Private Prison in El Cajon, California”; Federal Magistrate Judge Alice P. 8 Senechal; and Chief Judge for the United States District of North Dakota, Peter Welte. Id. 9 at 1–2. 10 C. Discussion 11 As an initial matter, the Court notes that Plaintiff does not provide the legal basis for 12 his claims. However, claims against federal actors may, under limited circumstances, be 13 brought under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 14 U.S. 388, 389 (1971). But here, Plaintiff cannot state a claim against any Defendant. 15 First, to the extent Olson names Magistrate Judge Senechal and District Judge Welte 16 as Defendants for their part in ordering his transfer, the Ninth Circuit has unequivocally 17 held that judges are absolutely immune from civil liability for acts performed in their 18 official capacity. See Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986); Moore v. 19 Brewster, 96 F.3d 1240, 1243–44 (9th Cir. 1996). 20 Second, Olson cannot state a claim against his appointed federal defense counsel, 21 Defendant Rhiannon Gorham. Federal public defenders do not act under color of federal 22 law for purposes of a Bivens action. See Hill v. Bookout, 584 F. App’x 588, 589 (9th Cir. 23 2014) (rejecting Bivens action against federal public defender in a federal habeas action on 24 the ground that “a federal public defender does not act under color of federal law when 25 performing the traditional role of a lawyer representing an indigent criminal defendant”); 26 see also Cox v. Hellerstein, 685 F.2d 1098, 1099 (9th Cir. 1982) (stating a federal public 27 defender does not act under color of federal law in a federal criminal proceeding). 28 / / / 1 Finally, Olson cannot state a claim against “CCA Private Prison in El Cajon, 2 California.” See ECF No. 1 at 1. The Court presumes “CCA” is a reference to “Corrections 3 Corporation of America,” which rebranded to “CoreCivic” in 2016.3 But Bivens does not 4 authorize a suit against the government or its agencies for monetary relief. See FDIC v. 5 Meyer, 510 U.S. 471, 486 (1994). Nor does it authorize a suit for money damages against 6 a private entity like the CCA and/or CoreCivic. See Correctional Services Corp. v. 7 Malesko, 534 U.S. 61, 66 n. 2 (2001) (holding that Meyer “forecloses the extension of 8 Bivens to private entities.”). A Bivens action may only be brought against the responsible 9 official alleged to have acted under color of federal law in his or her individual capacity. 10 See Daly–Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1988). As such, Plaintiff fails to 11 state a claim against CCA and/or CoreCivic. See Agyeman v. Corr. Corp. of America, 390 12 F.3d 1101, 1103–04 (9th Cir. 2004) (“[T]o the extent that Agyeman sought to hold 13 Corrections Corporation itself liable, the case could not be brought under Bivens. . . since 14 Corrections Corporation is a private corporation.”). 15 Even if Plaintiff were to name an individual officer at CCA and/or CoreCivic, he 16 cannot state a claim because Bivens has never been applied to an individual who was not 17 “in the direct employ of the federal government.” Martinez v. Geo Grp., Inc., No. 18-CV- 18 1125-SP, 2020 WL 2496063, at *18 (C.D. Cal. Jan. 7, 2020); see also Sanchez-Rivera v. 19 Bribiesca, No. 20-CV-1264-MMA-MSB, 2020 WL 4500626, at *5 (S.D. Cal. Aug. 5, 20 2020) (stating Bivens does not authorize a damages suit against a private entity or its 21 employees); Dubon v. GEO Corr. & Det., No. 3:18-CV-686-CAB-RBB, 2018 WL 22 4002620, at *3 (S.D. Cal. Aug. 22, 2018) (citing Malesko, 534 U.S. at 69, and explaining 23 that the Supreme Court has refused to extend liability for constitutional violations to private 24 actors who contract with the federal government); Nagel v. Core Civic, No. 2:20-CV- 25 01279-JAD-VCF, 2021 WL 4954304, at *3 (D. Nev. Oct. 25, 2021) (dismissing federal 26 27 3 See Corrections Corporation of America Rebrands as CoreCivic, CORECIVIC (Oct. 28, 2016), 28 1 prisoner could not pursue Eighth Amendment claims against CoreCivic employees under 2 Bivens because they “d[id] not fall into one of the three categories for which Bivens claims 3 are authorized, . . . and because they target[ed] employees of a privately operated prison.”). 4 Therefore, even if Plaintiff were not barred from proceeding IFP, the Complaint is 5 subject to dismissal for failure to state a claim and any attempt to amendment would be 6 futile. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“Futility of amendment 7 can, by itself, justify the denial of a motion for leave to amend.”). 8 MISCELLANEOUS MOTIONS 9 Also pending before the Court are Plaintiff’s “Motion to Get Legal Work Back” 10 [ECF No. 3], two “Motions to Remain Pro Se” [ECF Nos 4–5], “Motion for Knowledge” 11 [ECF No. 6]; “Motion to Dismiss and for Inmate’s Safety” [ECF No. 8]; “Motion to be 12 Acknowledged and Brian Toay Dismissed” [ECF No. 7]; and “Motion for Information” 13 [ECF No. 11]. As discussed above, however, the case is dismissed without leave to amend 14 because Plaintiff is barred from proceeding IFP and because the Complaint fails to state a 15 claim. Therefore, the Court DENIES the above motions as moot. 16 CONCLUSION AND ORDER 17 For reasons discussed above, the Court: 18 (1) DENIES the Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g); 19 (2) DISMISSES this civil action without leave to amend based on Plaintiff’s 20 failure to pay the full $405 statutory and administrative civil filing fee required by 21 28 U.S.C. § 1914(a), and for failure to state a claim pursuant to 28 U.S.C. § 1915A(b); 22 (3) DENIES Plaintiff’s remaining pending motions as moot (ECF Nos. 3–8, 11); 23 (4) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 24 28 U.S.C. § 1915(a)(3); and 25 / / / 26 / / / 27 / / / 28 / / / 1 (5) DIRECTS the Clerk of Court to enter a judgment and to close the file. 2 IT IS SO ORDERED. 3 || Dated: May 27, 2026 MO 4 QF) □ 5 Honorable Linda Lopez ‘ United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28