Lawrie v. Lynch

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MATTHEW ALAN LAWRIE, Case No.: 3:20-cv-2214-WQH-DEB CDCR #F-74464, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IFP AS 14 BARRED BY 28 U.S.C. § 1915(g) MERRILL LYNCH; PIERCE; FENNER; [ECF No. 2] 15 SMITH, INC.; ALAN F. LAWRIE; A.

YVONNE LAWRIE RODRIGUEZ; 16 AND KAREN MERKER; PEOPLE OF THE 17 STATE OF CALIFORNIA; COUNTY 2) DISMISSING CIVIL ACTION OF SAN DIEGO; DOES 1-100, 18 FOR FAILURE TO PAY FILING Defendants. FEES REQUIRED BY 19 28 U.S.C. § 1914(a) 20 21 22 Matthew Lawrie (“Plaintiff”), currently incarcerated at Kern Valley State Prison 23 (“KVSP”) located in Delano, California, and proceeding pro se, has filed a civil rights 24 Complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. See Compl., ECF No. 1. 25 I. 28 U.S.C. § 1915(g)’s “Three Strikes” Bar 26 A. Standard of Review 27 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 28 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 1 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 2 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 3 § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 4 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 5 amended section 1915 to preclude the privilege to proceed IFP: 6 . . . 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 7 States that was dismissed on the grounds that it is frivolous, malicious, or fails 8 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 9 10 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 11 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 12 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 13 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 14 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 15 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective 16 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 17 in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 18 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 19 the statute’s effective date.” Id. at 1311. 20 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 21 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 22 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 23 styles such dismissal as a denial of the prisoner’s application to file the action without 24 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); 25 see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when 26 court “review[s] 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.’”) 1 (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 2 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 3 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 4 facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 5 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a 6 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at 7 the time of filing.”). 8 B. Discussion 9 The Court has reviewed Plaintiff’s Complaint and finds it does not contain any 10 “plausible allegations” which suggest he “faced ‘imminent danger of serious physical 11 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 12 Plaintiff’s Complaint is not entirely clear but he seeks to hold Merrill Lynch liable for 13 creating a retirement account for his father “for the purpose” of creating a “tax liability” 14 for Plaintiff. (Compl. at 2.) 15 Defendants typically carry the initial burden to produce evidence demonstrating a 16 prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, but “in some instances, 17 the district court docket may be sufficient to show that a prior dismissal satisfies at least 18 one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. 19 Based on a review of its own dockets and other court proceedings available on 20 PACER,1 the Court finds that Plaintiff Matthew Lawrie, and identified as CDCR Inmate 21 #F-74464, has had three prior prisoner civil actions dismissed on the grounds that they 22 were frivolous, malicious, or failed to state a claim upon which relief may be granted. 23 24 25 1 The Court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv- 00452–MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author 26 Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘notice of proceedings in other courts, both within and without the 27 federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 28 1 They are: 2 1) Lawrie v. Vargas, et al., Civil Case No. 11cv2081 H (BLM) (S.D. Cal. Oct. 18, 2011) (Order Dismissing Action for failing to state a claim) (strike 3 one); 4 2) Lawrie v. Garcia, et al., Civil Case No. 11cv2237 DMS (BLM (S.D. 5 Cal. Feb. 2, 2012) (Order Dismissing Action for failing to state a claim) (strike 6 two);

7 3) Lawrie v. Cline, et al., Civil Case No. 11cv2584 H (JMA) (S.D. Cal. 8 Dec. 19, 2011) (Order Dismissing Action for failing to state a claim) (strike three). 9 10 Therefore, because Plaintiff has, while incarcerated, accumulated three “strikes” 11 pursuant to § 1915(g), and he fails to make a plausible allegation that he faced imminent 12 danger of serious physical injury at the time he filed his Complaint, he is not entitled to the 13 privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v. 14 Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not 15 prevent all prisoners from accessing the courts; it only precludes prisoners with a history 16 of abusing the legal system from continuing to abuse it while enjoying IFP status”); see 17 also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to 18 proceed IFP is itself a matter of privilege and not right.”). 19 III. Conclusion and Orders 20 For the reasons discussed, the Court: 21 1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 3) as barred by 28 22 U.S.C. § 1915(g); 23 2) DISMISSES this civil action without prejudice for failure to pay the full 24 statutory and administrative $400 civil filing fee required by 28 U.S.C. § 1914(a); 25 3) CERTIFIES that an IFP appeal from this Order would be frivolous and 26 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 27 / / / 28 / / / 1 4) DIRECTS the Clerk of Court to enter a final judgment and close the file. 2 IT IS SO ORDERED. 3 || Dated: December 3, 2020 BME: ie Z. A a 4 Hon. William Q. Hayes 5 United States District Court 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 oo