Dunsmore v. State of California

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 DARRYL DUNSMORE, Case No.: 3:20-cv-0758-JLS-JLB CDCR #AD-6237, 11 ORDER: (1) DENYING MOTIONS Plaintiff, 12 TO PROCEED IN FORMA vs. PAUPERIS; AND (2) DISMISSING 13 CIVIL ACTION WITHOUT 14 PREJUDICE FOR FAILURE TO STATE OF CALIFORNIA; PAY FILING FEE REQUIRED BY 15 DEPARTMENT OF CORRECTIONS; 28 U.S.C. § 1914(a) 16 SAN DIEGO SHERIFF’S DEPARTMENT; GORE; and XAVIER 17 (ECF Nos. 5, 8) BECCERA, 18 Defendants. 19 20 Plaintiff Darryl Dunsmore, currently incarcerated at the California Health Care 21 Facility located in Stockton, California, initiated this action by filing a “Motion for 22 Intervention and Further Injunctive Relief” in the Northern District of California. (ECF 23 No. 1.) Plaintiff later filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (See 24 Compl., ECF No. 4.) Plaintiff also filed two Motions to Proceed In Forma Pauperis 25 (“IFP”) (See ECF Nos. 5, 8). On April 20, 2020, United States District Judge Yvonne 26 Gonzalez Rogers determined that venue was proper in the Southern District of California 27 and transferred the matter to this Court. (See ECF No. 9.) 28 /// 1 I. Motion to Proceed IFP 2 A. Legal Standard 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 7 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 8 preclude the privilege to proceed IFP in cases where the prisoner 9 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 States that was 10 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 11 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12 13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 15 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 16 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 17 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 18 from IFP status under the three strikes rule”). The objective of the PLRA is to further “the 19 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 20 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 21 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 22 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 23 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 24 styles such dismissal as a denial of the prisoner’s application to file the action without 25 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 26 When courts “review a dismissal to determine whether it counts as a strike, the style of the 27 dismissal or the procedural posture is immaterial. Instead, the central question is whether 28 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 1 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 2 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 3 action,” however, courts may “assess a PLRA strike only when the case as a whole is 4 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 5 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 6 Cir. 2016)). 7 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 8 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 9 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 10 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 11 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 12 of filing”). 13 B. Discussion 14 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while 17 defendants typically carry the initial burden to produce evidence demonstrating a prisoner 18 is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district 19 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 20 criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case 21 here. 22 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 23 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States 24 v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)), and “‘may take notice of 25 proceedings in other courts, both within and without the federal judicial system, if those 26 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 27 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 28 2002)). 1 Based on a review of its own docket and other court proceedings available on 2 PACER, the Court finds that Plaintiff Darryl Lee Dunsmore, identified as CDCR Inmate 3 #AD-6237, while incarcerated, has had three prior civil actions dismissed because they 4 were frivolous, malicious, or failed to state a claim upon which relief may be granted. 5 They are: 6 (1) Dunsmore v. San Diego County Sheriff’s Dep’t, et al., Civil Case No. 3:11-cv-00083-IEG-WVG (S.D. Cal. Nov. 8, 2011) (Order Dismissing 7 Second Amended Complaint for failing to state a claim) (strike one); 8 (2) Dunsmore v. State of California, et al., Civil Case No. 2:11-cv-07141- 9 DOC-JCG (C.D. Cal. Sept. 4, 2012) (Order Dismissing Second Amended 10 Complaint for failing to state a claim) (strike two);

11 (3) Dunsmore v. State of California, et al., Civil Case No. 3:12-cv-01936- 12 JAH-DHB (S.D. Cal. March 20, 2013) (Order granting IFP and Dismissing First Amended Complaint for failing to state a claim and as frivolous) (strike 13 three). 14 15 Accordingly, because Plaintiff has accumulated, while incarcerated, at least three 16 “strikes” as defined by § 1915(g), and because he fails to make a “plausible allegation” that 17 he faced imminent danger of serious physical injury at the time he filed his Complaint, he 18 is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 19 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 20 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 21 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 22 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 23 itself a matter of privilege and not right.”). 24 II. Conclusion and Orders 25 For the reasons set forth above, the Court: 26 (1) DENIES Plaintiff’s Motions to Proceed IFP (ECF No. 5, 8) as barred by 28 27 U.S.C. § 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing 28 to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 1 ||(3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 2 ||U.S.C. § 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 3 IT IS SO ORDERED. 4 ||Dated: May 4, 2020 tt , 5 jen Janis L. Sammartino 6 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