Wilson v. Edmonson

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 4 Teddy LeRoy WILSON, Jr., Case No. 23-cv-0605-AGS-MSB 5 Plaintiff, ORDER DENYING MOTION TO 6 v. PROCEED IN FORMA PAUPERIS (ECF 2), DENYING MOTIONS TO 7 AMEND AS MOOT (ECF 4 & 5), Amanda EDMONSON, et al., 8 AND DISMISSING THE Defendants. COMPLAINT IN ITS ENTIRETY 9 10 11 Teddy LeRoy Wilson, Jr., an inmate suing defendants for civil-rights violations 12 under 42 U.S.C. § 1983, moves to proceed in forma pauperis. For the reasons below, that 13 motion is denied, his motions for leave to amend are denied as moot, and the complaint is 14 dismissed without prejudice. 15 DISCUSSION 16 Typically, parties instituting a civil action in a United States district court must pay 17 filing fees of $402.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 18 pauperis, a plaintiff need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 19 (9th Cir. 1999). Prisoners like Wilson, however, “face an additional hurdle.” Moore v. 20 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). To further “the 21 congressional goal of reducing frivolous prisoner litigation in federal court,” prisoners 22 cannot proceed IFP once they “have, while incarcerated, on 3 or more prior occasions had 23 claims dismissed due to their frivolity, maliciousness, or failure to state a claim.” Tierney 24 25 26 1 In addition to the $350 statutory fee, civil litigants must pay a $52 administrative 27 fee. See 28 U.S.C. § 1914(a); District Court Misc. Fee Schedule, § 14 (effective Dec. 1, 2020). 28 1 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997) (cleaned up); see also 28 U.S.C. § 1915(g) 2 (“In no event shall a prisoner bring a civil action under this [IFP] section . . . if the prisoner 3 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 4 an action . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to 5 state a claim upon which relief may be granted, unless the prisoner is under imminent 6 danger of serious physical injury.”). 7 When courts review a dismissal to determine whether it counts as one of these three 8 strikes, “the style of the dismissal or the procedural posture is immaterial” because “the 9 central question is whether the dismissal rang the PLRA [Prison Litigation Reform Act] 10 bells of frivolous, malicious, or failure to state a claim.” El-Shaddai v. Zamora, 833 F.3d 11 1036, 1042 (9th Cir. 2016) (cleaned up). Prior cases are considered strikes, then, “even if 12 the district court styles such dismissal as a denial of the prisoner’s application to file the 13 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 14 (9th Cir. 2008). Defendants typically carry the initial burden to produce evidence 15 demonstrating a prisoner is not entitled to proceed IFP for having three strikes, but “in 16 some instances, the district court docket may be sufficient to show that a prior dismissal 17 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” 18 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 19 Wilson, while incarcerated, has had three prior prisoner civil actions dismissed on 20 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief 21 may be granted, rendering him ineligible to proceed IFP. See United States v. Wilson, 22 631 F.2d 118, 119 (9th Cir. 1980) (holding that “a court may take judicial notice of its own 23 records in other cases, as well as the records of [different courts] in other cases”); see also 24 Fed. R. Evid. 201(b)(2) (“The court may judicially notice a fact that is not subject to 25 reasonable dispute because it can be accurately and readily determined from sources whose 26 accuracy cannot reasonably be questioned.”). Those three strikes are: (1) Wilson v. 27 Andrews, et al., No. 2:10-cv-02664-UA-RZ, slip op. at 1 (C.D. Cal. Apr. 26, 2010) 28 (dismissing case as frivolous and for failing to state a claim); (2) Wilson v. CDCR, No. 1 || 3:23-cv-00344-MMA-BLM, slip op. at 2-3 (S.D. Cal. Apr. 11, 2023) (dismissing case as 2 || frivolous); and (3) Wilson v. Cardenas, et al., No. 3:23-cv-00278-JLS-LR, slip op. at 3-7 3 ||(S.D. Cal. May 24, 2023) (dismissing case for failing to state a claim). 4 Nor does Wilson meet the “imminent danger of serious physical injury” exception 5 under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 6 || to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 7 || 1047, 1056 (9th Cir. 2007) (cleaned up). It “cannot be triggered solely by complaints of 8 ||past injury or generalized fears of possible future harm.” Hernandez v. Williams, No. 9 ||21cv347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned up). 10 |} Wilson alleges he has been subjected to malicious prosecution for which he seeks to hold 11 liable the judges of the San Diego County Superior Court, his public defender, and the 12 ||San Diego district attorney. (ECF 1-2, at 1.) Nothing in his complaint satisfies the 13 imminent-danger exception. 14 CONCLUSION 15 Thus, Wilson’s motion to proceed in forma pauperis (ECF 2) is DENIED as barred 16 || by 28 U.S.C. § 1915(g). Wilson’s motions for leave to amend (ECF 4 & 5) are DENIED 17 || AS MOOT. And the action is DISMISSED WITHOUT PREJUDICE for failure to pay 18 || the statutory and administrative $402 civil filing fee required by 28 U.S.C. § 1914(a). The 19 || Clerk of Court is directed to close this case. The Court also “certifies in writing” that an in 20 || forma pauperis appeal of this Order would be frivolous and “not taken in good faith.” 21 U.S.C. § 1915(a)(3). 22 ||Dated: July 13, 2023 23 Andrew G. Schopler United States District Judge 25 26 27 28 3 oe