Jones v. Appellate Defenders Inc.

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Wayne Elijah JONES, Case No.: 24-cv-0532-AGS-MMP Plaintiff, 4 ORDER DENYING MOTION TO v. PROCEED IN FORMA PAUPERIS 5 (ECF 2), DISMISSING COMPLAINT, APPELLATE DEFENDERS, INC., et al., 6 AND CLOSING CASE Defendants. 7 8 9 Wayne Elijah Jones, an inmate suing defendants for civil-rights violations under 10 42 U.S.C. § 1983, moves to proceed in forma pauperis. For the reasons below, that motion 11 is denied, and the complaint is dismissed without prejudice. 12 DISCUSSION 13 Typically, parties instituting a civil action in a United States district court must pay 14 filing fees of $405.1 See 28 U.S.C. § 1914(a). But if granted the right to proceed in forma 15 pauperis, a plaintiff need not pay those fees. Rodriguez v. Cook, 169 F.3d 1176, 1177 16 (9th Cir. 1999). Prisoners like Jones, however, “face an additional hurdle.” Moore v. 17 Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). To further “the 18 congressional goal of reducing frivolous prisoner litigation in federal court,” prisoners 19 cannot proceed IFP once they “have, while incarcerated, on 3 or more prior occasions had 20 claims dismissed due to their frivolity, maliciousness, or failure to state a claim.” Tierney 21 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997) (cleaned up); see also 28 U.S.C. § 1915(g) 22 (“In no event shall a prisoner bring a civil action under this [IFP] section . . . if the prisoner 23 has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 24 25 1 In addition to the $350 statutory fee, civil litigants must pay an additional 26 administrative fee of $55. See 28 U.S.C. § 1914(a); Judicial Conference Schedule of Fees, 27 District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The $55 administrative fee does not apply to persons granted leave to proceed without prepayment. Id. 28 1 an action . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to 2 state a claim upon which relief may be granted, unless the prisoner is under imminent 3 danger of serious physical injury.”). 4 When courts review a dismissal to determine whether it counts as one of these three 5 strikes, “the style of the dismissal or the procedural posture is immaterial” because “the 6 central question is whether the dismissal rang the PLRA [Prison Litigation Reform Act] 7 bells of frivolous, malicious, or failure to state a claim.” El-Shaddai v. Zamora, 833 F.3d 8 1036, 1042 (9th Cir. 2016) (cleaned up). Prior cases are considered strikes, then, “even if 9 the district court styles such dismissal as a denial of the prisoner’s application to file the 10 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 11 (9th Cir. 2008). Defendants typically carry the initial burden to produce evidence 12 demonstrating a prisoner is not entitled to proceed IFP for having three strikes, but “in 13 some instances, the district court docket may be sufficient to show that a prior dismissal 14 satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” 15 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 16 Jones, while incarcerated, has had at least four prior prisoner civil actions dismissed 17 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 18 relief may be granted, rendering him ineligible to proceed IFP. See United States v. Wilson, 19 631 F.2d 118, 119 (9th Cir. 1980) (holding that “a court may take judicial notice of its own 20 records in other cases, as well as the records of [different courts] in other cases”). These 21 are: (1) Jones v. Peng, No. 21-cv-1912-MMA-BLM (S.D. Cal. May 12, 2022) (strike one); 22 (2) Jones v. Peng, No. 22-55543 (9th Cir. Nov. 17, 2022) (strike two); (3) Jones v. 23 California Gov’t Claims Program, No. 23-cv-1256-WQH-DDL (S.D. Cal. Aug. 21, 2023) 24 (strike three); and (4) Jones v. Wasco State Prison, No. 23-cv-0543-JLT-BAM (E.D. Cal. 25 Sept. 15, 2023) (strike four). 26 Nor does Jones meet the “imminent danger of serious physical injury” exception 27 under 28 U.S.C. § 1915(g). Imminent danger requires an allegation that a harm is “ready 28 to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes, 493 F.3d 1 || 1047, 1056 (9th Cir. 2007) (cleaned up). It “cannot be triggered solely by complaints of 2 ||past injury or generalized fears of possible future harm.” Hernandez v. Williams, 3 || No. 21-cv-347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (cleaned 4 ||up). Jones seeks money damages for the defendants’ alleged failure to adequately represent 5 (See ECF 1, at 5-12.) Nothing in his complaint satisfies the imminent-danger 6 || exception. 7 CONCLUSION 8 Thus, Jones’s motion to proceed in forma pauperis (ECF 2) is DENIED as barred 9 || by 28 U.S.C. § 1915(g). The action is DISMISSED WITHOUT PREJUDICE for failure 10 ||to pay the statutory and administrative $405 civil filing fees required by 28 U.S.C. 11 1914(a). The Clerk of Court is directed to close this case. The Court also “certifies in 12 || writing” that an in forma pauperis appeal of this Order would be frivolous and “not taken 13 good faith.” 28 U.S.C. § 1915(a)(3). 14 ||Dated: April 4, 2024 Is AY— 16 Andrew G. Schopler United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28