Fields v. Macomber

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARCUS BRENT FIELDS, Case No.: 23-cv-01575-DMS-JLB CDCR No. V-46240, 12 ORDER: (1) DENYING MOTION Plaintiff, 13 TO PROCEED IN FORMA vs. PAUPERIS AS BARRED BY 28 14 U.S.C. § 1915(g); (2) DISMISSING 15 CIVIL ACTION WITHOUT JEFFERY MACOMBER; KATHLEEN PREJUDICE FOR FAILURE TO 16 ALLISON; S. GATES; C. MOORE; PAY FILING FEE REQUIRED BY 28 SOUSLEY MAKENZIE; ABDEEN; 17 U.S.C. § 1914(a); and (3) DENYING CDCR, MOTION FOR ORDER TO ACCESS 18 Defendants. LAW LIBRARY AS MOOT 19 [ECF Nos. 6, 8] 20 21 22 On August 24, 2023, Plaintiff Marcus Brent Fields, a state inmate currently 23 incarcerated at the Kern Valley State Prison filed a pro se civil rights Complaint pursuant 24 to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) The allegations in Plaintiff’s Complaint 25 are difficult to discern but he alleges that his constitutional rights were violated when he 26 was previously housed at the Richard J. Donovan Correctional Facility (“RJD”). (See 27 generally id. at 4–5.) Plaintiff seeks injunctive relief, $59,000,000 in compensatory 28 damages, $20,000,000 in punitive damages, and injunctive relief. (Id. at 9.) 1 Plaintiff has also filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 2 28 U.S.C. § 1915(a), along with a “Motion for Order to Access KSVP Law Library.” (ECF 3 Nos. 6, 8.) 4 I. 28 U.S.C. § 1915(g)’s “Three-Strikes” Bar 5 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 6 Sheriff’s Off., 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Fields, however, “face an 7 additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a filing 8 fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), 9 the Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the 10 privilege to proceed IFP in cases where the prisoner: 11 . . . 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 12 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 13 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 14 15 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 16 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 17 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 18 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (under the PLRA, “[p]risoners who have 19 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the 20 three strikes rule”). The objective of the PLRA is to further “the congressional goal of 21 reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 22 1312 (9th Cir. 1997). 23 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 24 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 25 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 26 styles such dismissal as a denial of the prisoner’s application to file the action without 27 prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 28 When courts “review a dismissal to determine whether it counts as a strike, the style of the 1 dismissal or the procedural posture is immaterial. Instead, the central question is whether 2 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 3 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 4 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 5 action,” however, courts may “assess a PLRA strike only when the case as a whole is 6 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 7 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 8 Cir. 2016)). 9 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 10 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 11 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051‒ 12 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 13 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 14 II. Discussion 15 A. Fields’s Litigation History 16 While Defendants typically carry the initial burden to produce evidence 17 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 18 some instances, the district court docket may be sufficient to show that a prior dismissal 19 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 20 at 1120. That is the case here. 21 Based on a review of its own dockets and other court proceedings publicly available 22 on PACER,1 the Court finds that Plaintiff Marcus Fields, CDCR No. V-46240, while 23 incarcerated, has had four prior civil actions and appeals dismissed on the grounds that they 24 were frivolous, malicious, or failed to state a claim upon which relief may be granted. 25 26 1 Courts may “‘take notice of proceedings in other courts, both within and without the federal judicial 27 system, if those proceedings have a direct relation to matters at issue.’” Tiedemann v. von Blanckensee, 72 F.4th 1001, 107 (9th Cir. 2023) (citing Kipp v. Davis, 971 F.3d 939, 945 n.2 (9th Cir. 2020) (citation 28 1 They are: 2 1) Fields v. Newsom, et al., Civil Case No. 3:22-cv-00044-LL- MDD (S.D. Cal. May 16, 2022) (Order Dismissing First 3 Amended Complaint for failing to state a claim and as frivolous) 4 (ECF No. 18) (strike one);

5 2) Fields v. Newsom, et al., No. 22-55519 (Order Dismissing 6 Appeal as frivolous) (9th Cir. Nov. 17, 2022) (strike two);

7 3) Fields v. Bouria, et al., Civil Case No. 3:22-cv-01656-JLS-MSB 8 (S.D. Cal. Nov. 18, 2022) (Order Dismissing Complaint for failing to state a claim and as frivolous) (strike three); and 9 10 4) Fields v. Bouria, et al., No. 22-56171 (Order Dismissing Appeal as frivolous) (9th Cir. May 18, 2023) (strike four). 11 12 Accordingly, because Fields has accumulated four “strikes” as defined by section 13 1915(g) while incarcerated, and fails to make a “plausible allegation” that he faced 14 imminent danger of serious physical injury at the time he filed his Complaint, as discussed 15 below, he is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 16 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 17 U.S.C. § 1915(g) “does not prevent all prisoners from accessing the courts; it only 18 precludes prisoners with a history of abusing the legal system from continuing to abuse it 19 while enjoying IFP status”); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 20 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 21 B. Imminent Danger Exception 22 In determining whether Fields may be granted leave to request IFP status, the Court 23 has reviewed his Complaint and finds it contains no “plausible allegations” to suggest he 24 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 25 F.3d at 1055. As stated above, Plaintiff’s claims are difficult to discern. However, he 26 appears to seek to hold RJD Defendants liable for claims that he suffers health issues from 27 receiving the COVID-19 vaccine. (See Compl. at 2.) These are the same claims Plaintiff 28 raised in the two previous actions set forth above which were dismissed as frivolous and 1 || for failing to state a claim. For these claims, Plaintiff seeks $79,000,000 in compensatory 2 punitive damages. (d. at 9.) 3 Based on the allegations in Fields’ Complaint, the Court finds Fields has not 4 || sufficiently alleged he is in imminent threat of harm. Because Fields is not facing a harm 5 || that is “ready to take place” or is “hanging threateningly over [his] head,” he does not meet 6 “imminent danger” exception to the three strikes rule. Cervantes, 493 F.3d at 1055 7 || (quoting 28 U.S.C. § 1915(g)). 8 II. Conclusion 9 For the reasons set forth above, the Court: 10 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 8) as barred by 28 U.S.C. 11 }/§ 1915(g); 12 (2) DENIES Plaintiff's Motion for Order to Access KVSP Law Library as moot 13 (ECF No. 6); 14 (3) DISMISSES this civil action sua sponte without prejudice for failing to prepay 15 $402 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 16 (4) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 17 ||28 U.S.C. § 1915(a)(3); and 18 (5) DIRECTS the Clerk of the Court to close the file. 19 IT IS SO ORDERED. 20 21 || Dated: November 16, 2023 ) ay. Lf 22 HON. DANA M. SABRAW, Chief Judge 3 United States District Court 24 25 26 27 28 5 oe