McNeil v. San Diego Sheriffs

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES ROY MCNEIL, Case No.: 23-CV-2199 JLS (BLM) CDCR# BV-9170, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS AS 15 BARRED BY 28 U.S.C. § 1915(g); SAN DIEGO SHERIFFS, et al., AND 16 Defendants. 17 (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 18 FAILURE TO PAY FILING FEE 19 REQUIRED BY 28 U.S.C. § 1914(a)

20 (ECF Nos. 1, 2) 21 22 Plaintiff James Roy McNeil, a state prisoner proceeding pro se, has filed a civil rights 23 Complaint (“Compl.,” ECF No. 1) pursuant to 42 U.S.C. § 1983, along with a Motion to 24 Proceed In Forma Pauperis (“IFP Mot.,” ECF No. 2). Plaintiff alleges his constitutional 25 rights were violated by Defendants while he was being held at the George Bailey Detention 26 Facility (“GBDF”) in San Diego County. Compl. at 1–3. 27 / / / 28 / / / 1 LEGAL STANDARD 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 4 fee, and those not granted leave to proceed in forma pauperis (“IFP”) must pay an 5 additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference 6 Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action 7 may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave 8 to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 9 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 10 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 11 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 12 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 13 appeal in a court of the United States that was dismissed on the 14 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under 15 imminent danger of serious physical injury. 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 19 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 20 pursuing any other IFP action in federal court unless he can show he is facing “imminent 21 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 22 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that 23 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 24 “‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which were 25 dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim,’” 26 King, 398 F.3d at 1116 n.1 (first alteration in original), “even if the district court styles 27 such dismissal as [a] denial of the prisoner’s application to file the action without 28 prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 1 When courts “review a dismissal to determine whether it counts as a strike, the style of the 2 dismissal or the procedural posture is immaterial. Instead, the central question is whether 3 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” 4 El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 5 738 F.3d 607, 615 (4th Cir. 2013)). 6 DISCUSSION 7 I. Plaintiff’s Prior “Strikes” 8 While defendants typically carry the initial burden to produce evidence 9 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 10 court docket . . . may be sufficient to show that a prior dismissal satisfies at least one of the 11 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That 12 is the case here. 13 A court “may take notice of proceedings in other courts, both within and without the 14 federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias 15 v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 16 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court 17 finds that Plaintiff James Roy McNeil, currently identified as California Department of 18 Corrections and Rehabilitation (“CDCR”) Inmate #BV-9170, while incarcerated, has had 19 at least six prior civil actions dismissed on the grounds that they were frivolous, malicious, 20 or failed to state a claim upon which relief may be granted. 21 They are: 22 (1) McNeil v. California, No. 05-cv-7330-UA-RC (C.D. Cal. Dec. 20, 2005) (Order Denying Leave to File Action without Prepayment of the Filing Fee 23 and Dismissing Action as “legal and/or factually patently frivolous.” [ECF 24 No. 7]) (strike one);

25 (2) McNeil v. Eply, No. 08-cv-2053-WQH-CAB (S.D. Cal. Feb. 18, 2009) 26 (Order Granting Motion to Proceed IFP, Denying Motion for Appointment of Counsel and Dismissing Civil Action pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 27 1915A(b) [ECF No. 6]) (strike two); 28 1 (3) McNeil v. Walker, No. 08-cv-2243 (E.D. Cal. April 3, 2009) (Order Denying Request for Appointment of Counsel and Dismissing Complaint with 2 Leave to Amend pursuant to 28 U.S.C. § 1915A(b)(1)–(2) [ECF No. 17]) 3 (strike three);

4 (4) McNeil v. Internal Revenue Service, No. 08-cv-2441-FCD-EFB (E.D. Cal. 5 Dec. 4, 2008) (Findings and Recommendation (“F&R”) to Dismiss Civil Action as duplicative1 [ECF No. 9]); (Order Adopting F&R and Dismissing 6 Action [ECF No. 12]) (strike four); 7 (5) McNeil v. Redding, No. 08-cv-2322-EFB (E.D. Cal. April 19, 2010) 8 (Order Dismissing Civil Action for failure to state a claim pursuant to 9 28 U.S.C. § 1915A [ECF No. 12]) (strike five); and 10 (6) McNeil v. Swartzennegger [sic], No. 09-cv-1454-WQH-POR (S.D. Cal. 11 Aug. 19, 2009) (Order Dismissing Civil Action as duplicative pursuant to 28 U.S.C. § 1915A(b)(1) and Denying Motion to Proceed IFP as Moot [ECF 12 No. 5]) (strike six). 13 14 Accordingly, Plaintiff has accumulated at least six “strikes” as defined by § 1915(g). 15 II. Imminent Danger of Serious Physical Injury 16 Given the above “strikes,” Plaintiff is not entitled to proceed IFP in this action unless 17 he has made a “plausible allegation” that he faced imminent danger of serious physical 18 injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; Rodriguez, 19 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all prisoners from 20 accessing the courts; it only precludes prisoners with a history of abusing the legal system 21 from continuing to abuse it while enjoying IFP status”). 22 / / / 23 24 25 1 The Ninth Circuit has recognized that a duplicative suit is either frivolous or malicious, and thus the dismissal of such a suit qualifies as a strike within the meaning of the three 26 strikes provision of the PLRA, 28 U.S.C. § 1915(g). See Cato v. United States, 27 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (recognizing that a duplicative complaint is either frivolous or malicious); see also LeBlanc v. Asuncion, 699 F. App’x 762 (9th Cir. 2017) 28 1 Here, Plaintiff makes no such allegation. In his Complaint, Plaintiff claims his 2 ||constitutional rights were violated when (1) unnamed Sheriff’s deputies at GBCF used 3 excessive force against him during and after a January 3, 2023 cell extraction and (2) two 4 ||unnamed nurses at GBCF subsequently failed to provide adequate medical care. Compl. 5 2-3. Plaintiff, however, was no longer housed at GBCF, or in the custody of the San 6 || Diego Sherrif’s Department, on the date he signed his Complaint. See id. at 1. Instead, he 7 indicates he was in the custody of the CDCR and housed at Wasco State Prison at the time 8 ||he filed the Complaint. See id. Plaintiff is thus now incarcerated at a different institution 9 ||from where the incident occurred and where none of the defendants are alleged to be 10 |}employed. Accordingly, the Court finds Plaintiff's Complaint contains no “plausible 11 || allegation” to suggest he “faced ‘imminent danger of serious physical injury’ at the time of 12 || filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 13 CONCLUSION 14 In light of the foregoing, the Court (1) DENIES Plaintiff's Motion to Proceed IFP 15 (ECF No. 2) as barred by 28 U.S.C. § 1915(g); and (2) DISMISSES the Complaint for 16 || failure to satisfy the filing fee requirement. Unless Plaintiff pays the $405 civil filing fee 17 || within forty-five (45) days of the date this Order is filed, the Court will enter a final 18 judgment of dismissal. 19 IT IS SO ORDERED. 20 ||Dated: December 14, 2023 . tt 21 jen Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28 5