Timothy Buford v. T. Winehymmer ( 2020 )


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  • UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 5:20-cv-00951-VAP (SK) Date May 15, 2020 Title Timothy Buford v. T. Winehymmer et al. Present: The Honorable Steve Kim, U.S. Magistrate Judge Connie Chung n/a Deputy Clerk Court Smart / Recorder Attorneys Present for Plaintiff: Attorneys Present for Defendants: None present None present Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE Plaintiff is a California state prisoner seeking to proceed in forma pauperis with a complaint under 42 U.S.C. § 1983 against several San Bernardino Deputy Sheriffs, the County of San Bernardino, the State of California, and the owner of a private towing company. (ECF 1, 2). He asserts various constitutional and state law claims arising from his arrest and five-day stint in jail in April 2016. (ECF 1 at 6-16). But Plaintiff is ineligible for in forma pauperis (“IFP”) status because he has acquired more than three strikes under the Prison Litigation Reform Act of 1996. See 28 U.S.C. § 1915(g); Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (§ 1915(g) is “commonly known as the ‘three strikes’ provision”). Section 1915(g) bars a prisoner from proceeding IFP, “if the 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 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” While Defendants typically carry the initial burden to show that a prisoner may not proceed IFP, “[i]n some instances, the district court docket records may be sufficient to show that” a prisoner has more than three strikes under § 1915(g).! Andrews, 398 F.3d at 1120. That is the case here. At least five of Plaintiffs prior civil actions—commenced while he was in prison—have been dismissed for failure to state a claim on which relief may be granted. See Buford v. Lewis, et al., N.D. Cal. Case No. 3:00-cv-02631; Buford v. Gray, et al., E.D. Cal. Case No. 1:00-cv-06206; Buford v. Rivera, et al., E.D. Cal. Case No. 1:01-cv-05007; Buford v. Hicks, et al., E.D. Cal. Case No. 1:02-cv-05265; Buford v. Bozwell, E.D. Cal. Case No. 1:02-cv- 05997. He has also been denied leave to proceed IFP under § 1915(g) in several later cases. See Buford v. Pharmacy Manager, et al., E.D. Cal. Case No. 1:04-cv-05543; Buford v. Grant, et al., E.D. Cal. Case No. 1:04-cv-05555; Buford v. Amtrak Train Station, et al., E.D. Cal. Case No. 1:04-cv-05564; Buford v. City of Fresno, et al., E.D. Cal. Case. No. 1:04-cv-05565. So because the current complaint contains no allegations to suggest that Plaintiff faced imminent The Court may take judicial notice of proceedings in other courts “if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (cleaned up). UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA CIVIL MINUTES - GENERAL Case No. 5:20-cv-00951-VAP (SK) Date May 15, 2020 Title Timothy Buford v. T. Winehymmer et al. danger of serious physical injury at the time of filing, Plaintiff may not proceed IFP here. See Eckard v. Cornell, 2019 WL 7882455, at *1 (W.D. Wash. Dec. 4, 2019) (three-strikes rule applies to lawsuits challenging events preceding incarceration as long as the prisoner is currently incarcerated and has received three prior strikes), adopted by, 2020 WL 618540 (W.D. Wash. Feb. 10, 2020). Even if Plaintiff were to pay the full filing fee, though, relief is unavailable if Plaintiffs claims are untimely. See 28 U.S.C. § 1915A(b)(1); Fed. R. Civ. P. 12(b)(6). The events Plaintiff complains of occurred in April, May, and June 2016. (ECF 1 at 6-16). So Plaintiff had to bring any claims alleging constitutional violations based on those events within two years. See Mills v. City of Covina, 921 F.3d 1161, 1166 (9th Cir. 2019). But Plaintiff did not file this action until May 2020, nearly four years after the events alleged in the complaint. As a result, Plaintiffs claims are time-barred unless he can allege a legitimate basis for equitable tolling. See Canatella v. Van De Kamp, 486 F.3d 1128, 1132 (9th Cir. 2007) (forum state’s tolling laws apply to § 1983 actions); Fink v. Shedler, 192 F.3d 911, 916-17 (9th Cir.1999) (explaining three-pronged test for equitable tolling in California). For these reasons, Plaintiff is ORDERED TO SHOW CAUSE on or before June 15, 2020, why his in forma pauperis application should not be denied and his complaint dismissed. If Plaintiff wishes to proceed with this action, he must first pay the $350 filing fee required to commence a civil action. See 28 U.S.C. § 1914(a). Even then, Plaintiff must also file a response to this order explaining why the Court is wrong about the statute of limitations. If Plaintiff cannot cure the deficiencies outlined in this order, Plaintiff may alternatively file a notice of voluntary dismissal using the attached form CV-09. In any case, failure to file a voluntary dismissal or a timely response to this order may result in involuntary dismissal of this action for failure to prosecute. See Fed. R. Civ. P. 41(b); L.R. 41-1. IT ISSO ORDERED.

Document Info

Docket Number: 5:20-cv-00951

Filed Date: 5/15/2020

Precedential Status: Precedential

Modified Date: 6/20/2024