Cecil v. Macomber

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GARY CECIL, Case No. 3:23-cv-00560-BAS-BGS CDCR #AF5647, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) JEFFREY MACOMBER, Secretary, [ECF No. 2]; and 16 California Department of Corrections and Rehabilitation, 17 (2) DISMISSING ACTION Defendant. WITHOUT PREJUDICE FOR 18 FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Gary Cecil (“Plaintiff” or “Cecil”), a state prisoner currently incarcerated at R.J. 22 Donovan Correctional Facility (“RJD”), is proceeding pro se and has filed a civil rights 23 Complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff did not 24 prepay the civil filing fee required to commence a civil action at the time he filed his 25 Complaint; instead, he seeks to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. 26 § 1915(a). (IFP App., ECF No. 2.) Because Plaintiff is subject to the “three strike” rule 27 enunciated at 28 U.S.C. § 1915(g), his IFP Application is DENIED and this action is 28 DISMISSED WITHOUT PREJUDICE. 1 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 2 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 3 an additional hurdle.” Id. 4 To further “the congressional goal of reducing frivolous prisoner litigation in federal 5 court,” the Prison Litigation Reform Act (“PLRA”), § 804(g), 28 U.S.C. § 1915(g), 6 provides that prisoners with “three strikes” or more cannot proceed IFP. Tierney v. Kupers, 7 128 F.3d 1310, 1312 (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 . . . . 11 12 28 U.S.C. § 1915(g). 13 When courts “review a dismissal to determine whether it counts as a strike, the style 14 of the dismissal or the procedural posture is immaterial. Instead, the central question is 15 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 16 claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. 17 Wards, 738 F.3d 607, 615 (4th Cir. 2013)). Thus, prior cases or appeals are considered 18 strikes “even if the district court styles such dismissal as a denial of the prisoner’s 19 application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 20 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is 21 prohibited by Section 1915(g) from proceeding IFP in federal court unless he can show he 22 is facing “imminent danger of serious physical injury.” 28 U.S.C. § 1915(g); see Andrews 23 v. Cervantes, 493 F.3d 1047, 1051–52 (9th Cir. 2007) (“Cervantes”). 24 Defendants typically carry the initial burden to produce evidence demonstrating a 25 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket may 26 be sufficient to show that a prior dismissal satisfies at least one on the criteria under § 27 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1119–20. 28 Upon reviewing its docket, and the dockets of the Central and Northern Districts of 1 California, the Court finds that Plaintiff, identified under CDCR No. AF5647, while 2 incarcerated, has had three prior prisoner civil actions or appeals dismissed on the grounds 3 that they were frivolous, malicious, or failed to state a claim upon which relief may be 4 granted. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (stating that a court 5 may take judicial notice of its own records in other cases, as well as other courts’ records). 6 Specifically, Plaintiff’s three strikes under Section 1915(g) are: 7 (1) Cecil v. Allen, et al., Civil Case No. 1:00-cv-07110-AWI-HBG (E.D. Cal. June 18, 2001) (Order Dismissing Case for Failing to State a Claim) (ECF 8 No. 13) (strike one); 9 (2) Cecil v. Paramo, et al., Civil Case No. 3:15-cv-02137-GPC-NLS (S.D. 10 Cal. Dec. 16, 2015) (Order Granting Motion to Proceed IFP and Dismissing 11 Complaint for Failing to State a Claim) (ECF No. 15) (strike two); and 12 (3) Cecil v. Bustilos, et al., Civil Case No. 5:22-cv-03523-EJD (N.D. Cal. Nov. 10, 2022 (Order Dismissing Complaint for Failing to State a Claim) 13 (ECF No. 17) (strike three). 14 15 These dismissals render Plaintiff ineligible to proceed IFP unless he can show he 16 meets the “imminent danger” exception, which Plaintiff fails to demonstrate. The 17 imminent danger exception under Section 1915(g) requires that the pleadings contain a 18 “plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 19 at the time of filing.” See Cervantes, 493 F.3d at 1055; see also 28 U.S.C. § 1915(g). 20 “Imminent danger” requires an allegation that a harm is “ready to take place,” or “hanging 21 threateningly over one’s head,” Cervantes, 493 F.3d at 1056, and “cannot be triggered 22 solely by complaints of past injury or generalized fears of possible future harm,” 23 Hernandez v. Williams, No. 21cv347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. 24 Apr. 8, 2021) (citing Cervantes, 493 F.3d at 1053). 25 Plaintiff alleges that Defendant has violated the ADA by denying him access to “low 26 vision” items, such as a light magnifier and a large print dictionary. (Collection of Exs, to 27 Compl., ECF No. 3 at 6–9.) He further alleges the ADA program at RJD is “broken and 28 needs federal hands-on review,” and that “[t]he ADA coordinator flat out denies and | ||refuses supplies for prisoners, even when it costs them nothing.” (/d. at 7.) Because 2 || Plaintiff fails to demonstrate he faced at the time he commenced this action—or that he 3 || continues to face—a harm that is “ready to take place” or “hanging threateningly over [his] 4 ||head,” the “imminent danger” exception to the three strikes rule is inapplicable here. 5 || Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 6 Accordingly, the Court: 7 (1) DENIES Plaintiffs IFP Application (ECF No. 2) as barred by 28 U.S.C. § 8 || 1915(g); 9 (2) DISMISSES WITHOUT PREJUDICE this civil action based on □□□□□□□□□□□ 10 || failure to pay the full statutory and administrative $402 civil filing fee required by 28 11 |/U.S.C. § 1914 (a); 12 (3) CERTIFIES that an IFP appeal from this Order would be frivolous and 13 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 14 (4) DIRECTS the Clerk of Court to close the case. 15 IT IS SO ORDERED. / , 16 || DATED: May 8, 2023 Lin 4 (Bashan. 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 -4-