Turner v. Chase Bank

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, Jr., Case No.: 3:22-cv-01320-JO-DDL Booking No. 22726041, 12 ORDER: Plaintiff, 13 vs. 1) DENYING MOTIONS TO 14 PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) CHASE BANK, JOHN DOE, (ECF Nos. 2–3 ) 16 Defendants. 17 AND 18 (2) DIRECTING PLAINTIFF TO 19 PAY CIVIL FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 20 21 22 Plaintiff David Bryan Turner, Jr. (“Plaintiff” or “Turner”), currently detained at San 23 Diego County Jail in San Diego, California, filed a civil rights Complaint pursuant to 42 24 U.S.C. § 1983. See Compl., ECF No. 1. Turner claims a Chase Bank employee injured his 25 leg, ankle, and foot when the employee opened the door of the bank and struck Turner with 26 it. Id. at 1–3. Turner did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); 27 instead, he filed motions to proceed In Forma Pauperis (“IFP”). ECF Nos. 2–3. For the 28 1 reasons set forth below, the Court denies Plaintiff’s IFP motion and directs him to pay the 2 civil filing fee to avoid dismissal. 3 I. Discussion 4 In order to further “the congressional goal of reducing frivolous prisoner litigation 5 in federal court,” the Prison Litigation Reform Act (“PLRA”) § 804(g), 28 U.S.C. 6 § 1915(g) (1996), provides that prisoners with “three strikes” or more cannot proceed IFP. 7 Tierney v. Kupers, 128 F.3d 1310, 1311–12 (9th Cir. 1997). A prisoner has three strikes if 8 on 3 or more prior occasions, while incarcerated or detained in any facility, [the prisoner] brought an action or appeal in a court 9 of the United States that was dismissed on the grounds that it is 10 frivolous, malicious, or fails to state a claim upon which relief can be granted unless the prisoner is under imminent danger of 11 serious physical injury. 12 13 28 U.S.C. § 1915(g). 14 When courts “review a dismissal to determine whether it counts as a strike, the style of the 15 dismissal or the procedural posture is immaterial. Instead, the central question is whether 16 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 17 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 18 F.3d 607, 615 (4th Cir. 2013)). Once a prisoner has accumulated three strikes, he is 19 prohibited by Section 1915(g) from proceeding IFP in federal court unless he can show he 20 is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Andrews 21 v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007). 22 Upon reviewing its docket and the Ninth Circuit docket, the Court finds that Plaintiff 23 has several strikes that render him ineligible to proceed IFP. Fed. R. Evid. 201(b)(2); 24 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court may take 25 judicial notice of its own records in other cases, as well as other courts’ records). After 26 checking for cases filed under the same name and comparing handwriting and signatures, 27 it appears that Plaintiff, associated with San Diego County Booking No. 22726041, is the 28 1 same individual who filed the following five actions while associated with a different 2 booking number: 3 (1) Turner v. Metropolitan Transit System, et al., No. 3:09-cv-00770-L-POR (S.D. Cal. Nov. 11, 2009) (associated with San Diego County Sheriff’s 4 Department Booking No. 15780644); (Order denying amended motion to 5 proceed IFP and dismissing amended complaint for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) (ECF No. 6)) (strike 6 one); 7 (2) Turner v. Corporal Saunder (7294), et al., No. 3:13-cv-01368-MMA- 8 DHB (S.D. Cal. June 18, 2013) (associated with San Diego County Sheriff’s 9 Department Booking No. 15780644) (Order dismissing action as frivolous pursuant to 28 U.S.C. § 1915A(b) and denying motion to proceed IFP as moot 10 (ECF No. 3)) (strike two); 11 (3) Turner v. County of San Diego, et al., No. 3:13-cv-02288-LAB-RBB 12 (S.D. Cal. July 11, 2014) (associated with San Diego County Sheriff’s 13 Department Booking No. 15780644) (Order sua sponte dismissing First Amended Complaint for failing to state a claim and as frivolous pursuant to 14 28 U.S.C.§ 1915(e)(2) and § 1915A(b) (ECF No. 7)), No. 14-56249 (9th Cir. 15 Nov. 11, 2014) (Order denying appellant’s motion to proceed IFP “because we find that there is no non-frivolous issue presented in this appeal” (ECF No. 16 13)) (strike three) 17 (4) Turner v. San Diego County, et al., No. 3:13-cv-02729-JLS-PCL (S.D. 18 Cal. Nov. 19, 2014) (associated with San Diego County Sheriff’s Department 19 Booking No. 15780644) (Order granting IFP and sua sponte dismissing First Amended Complaint for failing to state a claim pursuant to 28 U.S.C. 20 § 1915(e)(2)(B)(ii) and § 1915A(b)(1) (ECF No. 13)); (March 20, 2015 Order 21 dismissing case in its entirety for failing to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and for failing to prosecute pursuant to 22 Fed. R. Civ. P. 41(b) in compliance with Court Order requiring amendment 23 (ECF No. 14)) (strike four);1 and 24 25 26 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court dismisses a 27 complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 28 1 (5) Turner v. San Diego County, et al., No. 15-55544 (9th Cir. July 30, 2015) (appeal of 3:13-cv-02729-JLS-PCL, associated with San Diego County 2 Sheriff’s Booking No. 15780644) (Order denying appellant’s motion to 3 proceed IFP “because we find that the appeal is frivolous” (ECF No. 4)) (strike five).2 4 5 Because Plaintiff has accumulated the above five “strikes” while incarcerated, he 6 cannot proceed IFP unless he meets the “imminent danger” exception to the three strikes 7 provision of the PLRA. In order to do so, his pleadings must contain a “plausible allegation 8 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” 9 Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). Here, Plaintiff alleges no injury 10 or threat of injury other than the one he suffered on February 22, 2022, six months prior to 11 the filing of his complaint and four months prior to his incarceration.3 Plaintiff alleges that, 12 on that date, an employee of the Chase Bank struck his leg and foot with a door while he 13 was disabled and in a wheelchair. Compl., ECF No.1 at 1. Because Plaintiff was 14 incarcerated at the time he filed his Complaint, the Court cannot find he was in imminent 15 danger from Chase Bank or its employees, especially when the alleged event occurred six 16 months prior to the filing of the Complaint. Thomas v. Ellis, No. 12-cv-05563-CW(PR), 17 2015 WL 859071, at *3 (N.D. Cal. Feb. 26, 2015) (finding no “imminent danger” where 18 prisoner’s injuries occurred before incarceration). Because his complaint lacks plausible 19 allegations of imminent injury, Plaintiff does not meet the “imminent danger” exception to 20 the three strikes rule. Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 21 / / / 22 23 24 2 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate court’s denial of 25 prisoner’s request for IFP status on appeal, on grounds of frivolousness, constituted a “strike” under § 1915(g) “even though [it] did not dismiss the appeal until later when [the appellant] did not pay the 26 filing fee.”).

27 3 The San Diego County Sheriff’s Department website shows Turner was booked on June 24, 2022. See, https://apps.sdsheriff.net/wij/wijDetail.aspx?BookNum=5jiKfP3GMKRamUzbBcRXF19sP9r7k4uvOV 28 1 II. Conclusion and Orders 2 For the reasons set forth above, the Court: 3 (1) DENIES Plaintiff's Motions to Proceed IFP (ECF Nos. 2-3) as barred by 28 4 ||U.S.C. § 1915(g); 5 (2) DIRECTS Plaintiff to pay the full statutory and administrative $402 civil 6 || filing fee required by 28 U.S.C. § 1914(a) no later than thirty (30) days from the date of 7 Order. If Plaintiff does not pay the civil filing fee by that date, the Court will dismiss 8 || the action.4 9 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 10 |/ to 28 U.S.C. § 1915(a)(3); and 11 (4) DIRECTS the Clerk of the Court to close the file. 12 IT IS SO ORDERED. 13 || Dated: November 28, 2022 C 14 15 Wmited States District Judge 16 17 18 19 20 21 22 23 24 25 27 Tf Turner does pay the civil filing fee within the time stated, the Court will screen the Complaint pursuant 28 to 28 U.S.C. § 1915A.

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