Holgerson v. Paramo ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MATTHEW FORREY HOLGERSON, Case No.: 3:19-cv-02286-JLS-RBB CDCR #E-19753, 11 ORDER: (1) DENYING MOTION TO Plaintiff, 12 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY 28 U.S.C. § 1915(g); 13 (2) DENYING MOTIONS TO 14 ALLOW AMENDING OF MR. D. PARAMO; COMPLAINT AND TO REINSTATE 15 MISS MESSLER, M.D., IN FORMA PAUPERIS; AND 16 Defendants. (3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR 17 FAILURE TO PAY FILING FEE 18 REQUIRED BY 28 U.S.C. § 1914(a) 19 (ECF Nos. 2, 4, 6) 20 21 22 Plaintiff Matthew Forrey Holgerson, currently incarcerated at the California Health 23 Care Facility (“CHCF”) located in Stockton, California, has filed a civil rights Complaint 24 pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff claims his constitutional 25 rights were violated when he was previously housed at the Richard J. Donovan 26 Correctional Facility (“RJD”) in 2017 and 2018. (Id. at 1.) He has not prepaid the full 27 civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed 28 In Forma Pauperis (“IFP”) (ECF No. 2). 1 Before the Court could rule on Plaintiff’s Motion to Proceed IFP, he filed a Motion 2 to Allow Amending of Original Complaint and a Motion to Reinstate In Forma Pauperis. 3 (ECF Nos. 4, 6.) 4 I. Motion to Proceed IFP 5 A. Legal Standard 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 8 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a 9 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 10 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 11 preclude the privilege to proceed IFP in cases where the prisoner: 12 [H]as, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 13 the United States that was dismissed on the grounds that it is 14 frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of 15 serious physical injury. 16 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 17 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 18 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 19 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 20 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 21 from IFP status under the three strikes rule”). The objective of the PLRA is to further “the 22 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 23 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 26 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 27 styles such dismissal as a denial of the prisoner’s application to file the action without 28 1 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 2 When courts “review a dismissal to determine whether it counts as a strike, the style of the 3 dismissal or the procedural posture is immaterial. Instead, the central question is whether 4 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 5 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 6 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 7 action,” however, courts may “assess a PLRA strike only when the case as a whole is 8 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 9 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 10 Cir. 2016)). 11 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 12 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 13 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 14 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible 15 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 16 of filing.”). 17 B. Discussion 18 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 19 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 20 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). In his “Motion to 21 Reinstate In Forma Pauperis Status,” Plaintiff appears to be challenging a ruling in an 22 Eastern District of California proceeding in which he was denied IFP status pursuant to 28 23 U.S.C. § 1915(g). (See ECF No. 6 at 1–2.) In the Eastern District matter, the Court found 24 that several of Plaintiff’s previous actions constituted “strikes” because they had been 25 dismissed as frivolous. (Id. at 2–3.) 26 Plaintiff denies that these matters were frivolous and claims that he was trying to 27 explain “mind control systems” that were developed by “alien species technology” and 28 /// 1 used on “American citizens.” (Id. at 3.) This Court cannot overturn or modify the decision 2 of another District Court. 3 Moreover, Plaintiff’s allegations regarding “mind control systems” found in the 4 matters which were determined to be “strikes” are frivolous. “[A] complaint, containing 5 as it does both factual allegations and legal conclusions, is frivolous where it lacks an 6 arguable basis either in law or in fact. . . . [The] term ‘frivolous,’ when applied to a 7 complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual 8 allegation.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). When determining whether a 9 complaint is frivolous, the court need not accept the allegations as true, but must “pierce 10 the veil of the complaint’s factual allegations,” id. at 327, to determine whether they are 11 “‘fanciful,’ ‘fantastic,’ [or] ‘delusional,’” Denton v. Hernandez, 504 U.S. 25, 33 (1992) 12 (quoting Neitzke, 490 U.S. at 328). 13 In the matter before this Court, Plaintiff appears to claim that he suffered from back 14 pain when he was housed at RJD in 2017. (See Compl. at 4.) He seeks to hold an RJD 15 physician liable for failing to be “aware of [his] laying in [his] cell for four days without 16 appropriate medical attention or pain relief.” (Id. at 2.) At the time Plaintiff filed this 17 action on November 29, 2019, however, he was housed at CHCF, not RJD. Thus, there 18 are simply no plausible of allegations of “imminent danger of serious physical injury at the 19 time of filing.” Cervantes, 493 F.3d at 1055. 20 While Defendants typically carry the initial burden to produce evidence 21 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 22 some instances, the district court docket may be sufficient to show that a prior dismissal 23 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 24 at 1120. That is the case here. 25 A court may take judicial notice of its own records, see Molus v. Swan, Case No. 26 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United 27 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. 28 Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of 1 proceedings in other courts, both within and without the federal judicial system, if those 2 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 3 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 4 2002)). 5 Based on a review of its own docket and other court proceedings available on 6 PACER, the Court finds that Plaintiff Matthew Holgerson, identified as CDCR Inmate #E- 7 19753, while incarcerated, has had three prior civil actions dismissed on the grounds that 8 they were frivolous, malicious, or failed to state a claim upon which relief may be granted. 9 They are: 10 (1) Holgerson v. Knowles, et al., Case No. 2:02-cv-00036-GEB-GGH (E.D. Cal. Nov. 27, 2002) (Order adopting report and recommendation dismissing 11 action as frivolous and for failing to state a claim) (strike one); 12 (2) Holgerson v. Knowles, Case No. 2:06-00144-GEB-CMK (E.D. Cal. Dec. 13 12, 2006) (Order adopting report and recommendation dismissing action for 14 failing to state a claim) (strike two); and 15 (3) Holgerson v. Lizarraga, et al., Case No. 2:14-cv-01767-EFB (E.D. Cal. 16 Apr. 28, 2015) (Order granting IFP and dismissing action as frivolous pursuant to 28 U.S.C. § 1915A) (strike three). 17 18 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 19 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 20 imminent danger of serious physical injury at the time he filed his Complaint, he is not 21 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 22 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 23 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 24 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 25 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 26 itself a matter of privilege and not right.”). 27 /// 28 /// 1 |{II. Conclusion and Orders 2 For the reasons set forth above, the Court: 3 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 4 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 5 ||prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 6 ||(3) DENIES Plaintiff's Motion to Allow Amending of Original Complaint (ECF No. 4); 7 DENIES Plaintiff's Motion to Reinstate In Forma Pauperis (ECF No. 6); 8 ||(4) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 9 1128 U.S.C. § 1915(a)(3); and (5) DIRECTS the Clerk of the Court to close the file. 10 IT IS SO ORDERED. 11 Dated: January 28, 2020 . tt f Le 12 on. Janis L. Sammartino 13 United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6