Jones v. Via Path Communication

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 24cv0294-CAB (SBC) CDCR #BU-7712, 12 ORDER DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. [ECF No. 2] AND DISMISSING 14 COMPLAINT PURSUANT TO 15 28 U.S.C. § 1915(g) VIA PATH COMMUNICATION, et al., 16 Defendants. 17 18 19 20 Wayne Elijah Jones (“Plaintiff”), currently incarcerated at R.J. Donovan 21 Correctional Facility (“RJD”) and proceeding pro se, has filed a civil rights action pursuant 22 42 U.S.C. § 1983. ECF No. 1. Plaintiff did not prepay the civil filing fee required by 28 23 U.S.C. § 1914(a) at the time of filing. He has instead filed a Motion to Proceed In Forma 24 Pauperis (“IFP”) pursuant to 28 U.S.C. §1915(a). ECF No. 2. 25 IFP MOTION 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 28 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 1 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 2 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s 3 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 4 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 6 A. “Three Strikes” Provision 7 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 8 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 9 . . . if [a] prisoner 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 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails 11 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12 13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 15 “Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 16 pursuing any other IFP action in federal court unless he can show he is facing “imminent 17 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 18 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that 19 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”) 20 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 21 dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to state a claim,” 22 Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as a denial 23 of the prisoner’s application to file the action without prepayment of the full filing fee.” 24 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 25 determine whether it counts as a strike, the style of the dismissal or the procedural posture 26 is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells 27 of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 28 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 1 While Defendants typically carry the initial burden to produce evidence 2 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 3 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 4 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That 5 is the case here. 6 B. Prior “Strikes” 7 A court “‘may take notice of proceedings in other courts, both within and without 8 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 9 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 10 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court 11 finds that Plaintiff Wayne Elijah Jones, currently identified as California Department of 12 Corrections and Rehabilitation (“CDCR”) Inmate #BU-7712, while incarcerated, has had 13 at least four prior civil actions dismissed on the grounds that they were frivolous, malicious, 14 or failed to state a claim upon which relief may be granted. 15 They are: 16 (1) Jones v. Peng, et al., No. 21-cv-1912-MMA-BLM (S.D. Cal. May 12, 2022) 17 (Order Granting Motion to Proceed IFP, Dismissing Complaint with leave to amend for 18 failure to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B) & 1915A(b) [ECF No. 11]) 19 (May 12, 2022 Order dismissing action [ECF No. 12]) (strike one); 20 (2) Jones v. Peng, et al., No. 22-55543 (9th Cir. Nov. 17, 2022) (Order Revoking 21 IFP and Dismissing Appeal as Frivolous [Dkt No. 24]) (strike two); 22 (3) Jones v. Cal. Gov’t Claims Program, et al., No. 23-cv-1256-WQH-DDL (S.D. 23 Cal. Aug. 21, 2023) (Order Dismissing Case for failure to state a claim pursuant to 28 24 U.S.C. §1915A [ECF No. 7]) (strike three); 25 (4) Jones v. Wasco State Prison, No. 23-cv-0543-JLT-BAM (E.D. Cal. Sept. 15, 26 2023) (Findings and Recommendation (“F&R”) to Dismiss Civil Action for failure to state 27 a claim [ECF No. 22]); (Order Adopting F&R and Dismissing Action [ECF No. 23]) (strike 28 four). 1 Accordingly, Plaintiff has accumulated at least four “strikes” as defined by 2 § 1915(g). 3 C. Imminent Danger of Serious Physical Injury 4 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 5 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 6 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 7 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 8 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 9 The Court has reviewed Plaintiff’s Complaint and concludes it contains no “plausible 10 allegations” to suggest Jones faced “‘imminent danger of serious physical injury’ at the 11 time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Rather, he 12 seeks money damages for invasion of his right to privacy. ECF No. 1 at 2-3. 13 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 14 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 15 imminent danger of serious physical injury at the time he filed his Complaint, he is not 16 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 17 Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) 18 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 19 a history of abusing the legal system from continuing to abuse it while enjoying IFP 20 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (stating that 21 “court permission to proceed IFP is itself a matter of privilege and not right”). 22 CONCLUSION AND ORDER 23 Good cause appearing, the Court: 24 1. DENIES the Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g) [ECF 25 No. 2]; 26 2. DISMISSES this civil action sua sponte without prejudice for failing to 27 prepay the $405 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 28 / / / 1 3. CERTIFIES that an IFP appeal from this Order would not be taken in good 2 || faith pursuant to 28 U.S.C. §1915(a)(3), and 3 4. DIRECTS the Clerk of the Court to close the file. 4 IT IS SO ORDERED. 5 || Dated: February 22, 2024 € 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28