Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN LEE MATTHEWS II, Case No.: 26-cv-4486-AJB-SBC CDCR #BZ-9335, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PAY FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) CALIPATRIA STATE PRISON, et al., 15 CALIPATRIA, et al., CDCR and (Doc. No. 1) 16 WARDEN ARIAS, 17 Defendants. 18 19 Plaintiff Ivan Lee Matthews, II (“Plaintiff”), who is proceeding without counsel and 20 incarcerated at Calipatria State Prison in Calipatria, California, has filed a civil rights 21 Complaint under 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff seeks to hold the prison, its 22 owners, its Warden, the city, state and county where the prison sits, and the California 23 Department of Corrections and Rehabilitation liable for past instances of the use of 24 excessive force, denial of religious meals, disciplinary actions for failing to show up at 25 work due to medical issues, and inadequate laundry services, for which he seeks money 26 damages. (Id. at 4–6.) He has not paid the civil filing fee required by 28 U.S.C. § 1914(a) 27 and is not entitled to proceed in forma pauperis (“IFP”). Therefore, the Court DISMISSES 28 his case. 1 I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 2 All parties instituting any civil action, suit or proceeding in any district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405. See 28 U.S.C. § 1914(a).1 An action may proceed despite a failure to pay this filing 5 fee only if the party is granted leave to proceed IFP. See Andrews v. Cervantes, 493 F.3d 6 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 7 Plaintiff did not pay the $405 filing fee required to commence civil action pursuant 8 to 28 U.S.C. § 1914(a) at the time he filed suit, nor has he filed an application seeking leave 9 to proceed IFP. Therefore, this civil action cannot proceed. See 28 U.S.C. § 1914(a); 10 Andrews, 493 F.3d at 1051. And while the Court would ordinarily grant an unrepresented 11 litigant leave to file an IFP application pursuant 28 U.S.C. § 1915(a), it finds doing so in 12 this case would be futile. This is because, as explained below, Plaintiff’s litigation history 13 shows he is no longer entitled to that privilege, and his Complaint contains no plausible 14 allegations of imminent danger of serious physical injury at the time of filing. 15 A. Section 1915(g)’s Three-Strikes Rule 16 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 17 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 18 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 19 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 20 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 21 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 22 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 23 § 1915(g)); see also Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. 27 Dec. 1, 2023). The additional $52 administrative fee does not apply to persons granted IFP status under 28 U.S.C. § 1915(a). Id. 28 1 When courts “review a dismissal to determine whether it counts as a strike, the style 2 of the dismissal or the procedural posture is immaterial. See Harris v. Mangum, 863 F.3d 3 1133, 1142 (9th Cir. 2017) (“[I]t does not matter whether [plaintiff] might have stated a 4 claim. What matters is that he did not do so.”). The “central question is whether the 5 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” 6 El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 7 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 1915(g) [] 8 hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial 9 effect.” Lomax, 140 S. Ct. at 1724–25. 10 “[T]o qualify as a strike for § 1915(g), a case as a whole, not just some of its 11 individual claims, must be dismissed for a qualifying reason.” Hoffman v. Pulido, 928 F.3d 12 1147, 1152 (9th Cir. 2019) (citing Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 13 F.3d 1048, 1057 (9th Cir. 2016)). “[I]f a case was not dismissed on one of the specific 14 enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 15 F.3d 670, 673 (9th Cir. 2019). Once a prisoner accumulates three strikes, however, 16 § 1915(g) precludes his ability to proceed IFP in any other civil actions or appeals in federal 17 court unless he “makes a plausible allegation that [he] faced ‘imminent danger of serious 18 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. 19 § 1915(g)). 20 B. Plaintiff’s Prior “Strikes” 21 Defendants typically carry the initial burden to produce evidence demonstrating a 22 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 23 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 24 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 25 (9th Cir. 2005). This is one of those instances. A review of district court dockets on PACER 26 confirms Plaintiff is no longer eligible to proceed IFP because while incarcerated, he has 27 had more than three prior prisoner civil actions dismissed for a “qualifying reason” under 28 § 1915(g). Hoffman, 928 F.3d at 1152. 1 Pursuant to Federal Rule of Evidence 201(b)(2), the Court may take judicial notice 2 of the docket records in Plaintiff’s prior cases. See Andrews, 398 F.3d at 1120; United 3 States v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial 4 notice of undisputed matters of public record, which may include court records available 5 through PACER.”). 6 The following records are sufficient to show Plaintiff has incurred at least three 7 qualifying strikes: 8 (1) Matthews v. Pistone, et al., No. 04-cv-3712-JSW, 2005 WL 2671386, at *3 9 (N.D. Cal. Oct. 19, 2005) (order dismissing complaint without leave to amend for failure 10 to state a claim pursuant to 28 U.S.C. §1915A) (strike one); 11 (2) Matthews v. Alameida, No. 05-cv-0016-OWW (SMS) (E.D. Cal. Mar. 29, 2006) 12 (order adopting R&R and dismissing complaint for failure to obey court order and failure 13 to state a claim (Doc. No. 24)) (strike two); and 14 (3) Matthews v. Los Angeles Sheriff’s Dept., et al., No. 25-cv-1766-RGK (AGR) 15 (C.D. Cal. Mar. 5, 2025) (order dismissing complaint for failure to state a claim (Doc. No. 16 4)) (strike three). 17 Accordingly, Plaintiff has accumulated at least three “strikes” as defined by 18 § 1915(g). Because Plaintiff accumulated these prior qualifying strike dismissals while 19 incarcerated, and as discussed below, fails to make a “plausible allegation” that he faced 20 imminent danger of serious physical injury at the time he filed his Complaint, he is not 21 entitled to the privilege of proceeding IFP in this action.2 See Cervantes, 493 F.3d at 1055; 22 Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) 23 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 24 a history of abusing the legal system from continuing to abuse it while enjoying IFP 25 26 2 In fact, Plaintiff has been denied IFP privileges pursuant to § 1915(g) in the Southern District of 27 California before. See Matthews v. California, et al., Case No. 25cv2012-DMS-AHG (S.D. Cal. Sept. 17, 2025) (Order denying motion to proceed IFP as barred by 28 U.S.C. § 1915(g) and dismissing civil action 28 1 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 2 permission to proceed IFP is itself a matter of privilege and not right.”). 3 C. Imminent Danger Exception 4 In order to meet § 1915(g)’s exception, Plaintiff’s Complaint must contain a 5 “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the 6 time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). “Imminent 7 danger” requires an allegation that a harm is “ready to take place,” or “hanging 8 threateningly over one’s head,” id. at 1056, and “cannot be triggered solely by complaints 9 of past injury or generalized fears of possible future harm.” Hernandez v. Williams, Case 10 No. 3:21-cv-00347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (citing 11 Cervantes, 493 F.3d at 1053). 12 Plaintiff’s Complaint does not contain any plausible allegations to suggest he was in 13 “imminent danger” at the time he filed it. Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 14 § 1915(g)). Instead, he claims that in August and December of 2025, and January of 2026, 15 the laundry service did not comply with institutional policies, he was issued disciplinary 16 reports for failing to show up at work due to medical issues, he was denied religious meals, 17 and excessive force was used during a strip search, and he seeks $900 billion in damages. 18 (See Doc. No. 1 at 3–8.) Plaintiff’s Complaint contains no “plausible allegations” to 19 suggest he faced “‘imminent danger of serious physical injury’ at the time of filing.” 20 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 21 “The right to proceed in forma pauperis is not an unqualified one. [. . .] It is a 22 privilege, rather than a right.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) 23 (citations omitted). Section 1915(g) “does not prevent all prisoners from accessing the 24 courts; it only precludes prisoners with a history of abusing the legal system from 25 continuing to abuse it while enjoying IFP status.” Rodriguez, 169 F.3d at 1180. Thus, 26 because Plaintiff’s litigation history shows he is one of those prisoners, and he does not 27 plausibly allege to have been in “imminent danger of serious physical injury” at the time 28 he filed his Complaint, he is not entitled to proceed IFP in this action. See Cervantes, 1 F.3d at 1055. 2 CONCLUSION 3 For the reasons explained, the Court DISMISSES this civil action sua sponte 4 || without prejudice for failing to prepay the $405 civil and administrative filing fees required 5 28 U.S.C. § 1914(a); DENIES Plaintiff leave to file a motion to proceed in forma 6 || pauperis pursuant to 28 U.S.C. § 1915(g); CERTIFIES that any IFP appeal from this 7 || Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS 8 Clerk of the Court to close the file. 9 IT IS SO ORDERED. 10 || Dated: August 7, 2026 © ¢ Hon. Anthony J. attaglia 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 a