Turner v. State of California ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BRYAN TURNER, JR. Case No.: 3:24-cv-00649-RBM-MSB 12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS [DOC. 2] AND DISMISSING 14 COMPLAINT PURSUANT TO 15 STATE OF CALIFORNIA, M.T.S., 28 U.S.C. § 1915(g) CHASE BANK, CITY OF SAN DIEGO, 16 COUNTY OF SAN DIEGO, JANE DOE 17 1, JANE DOE 2, and CHASE BANK 18 Defendants. 19 20 21 I. INTRODUCTION 22 Plaintiff, David Bryan Turner, Jr. (“Plaintiff” or “Turner”), a prisoner proceeding 23 pro se, has filed a Complaint under the Civil Rights Act 42 U.S.C. § 1983 (“Complaint”), 24 along with a motion to proceed in forma pauperis (“IFP”). (Docs. 1, 2.) For the reasons 25 discussed below, the Court DENIES Plaintiff’s IFP motion and DISMISSES Plaintiff’s 26 Complaint pursuant to 28 U.S.C. § 1915(g). 27 /// 28 /// 1 II. IFP MOTION 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 4 $350, and those not granted leave to proceed IFP must pay an additional administrative fee 5 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 6 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s 7 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 8 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007) 9 (“Cervantes”); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 10 A. “Three Strikes” Provision 11 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”), 12 28 U.S.C. § 1915, was amended to preclude the privilege to proceed IFP: 13 . . . if [a] prisoner has, on [three] or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 14 States that was dismissed on the grounds that it is frivolous, malicious, or fails 15 to state a claim upon which relief can be granted, unless the prisoner is under 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.” 28 U.S.C. § 1915(g); see also Cervantes, 493 F.3d at 22 1055 (noting § 1915(g)’s exception for IFP complaints that “make[] a plausible allegation 23 that 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[s] that (they were) frivolous, malicious, or fail[ed] to state a 26 claim,” Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as 27 a denial of the prisoner’s application to file the action without prepayment of the full filing 28 fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a 1 dismissal to determine whether it counts as a strike, the style of the dismissal or the 2 procedural posture is immaterial. Instead, the central question is whether the dismissal 3 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 4 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 5 615 (4th Cir. 2013)). 6 While Defendants typically carry the initial burden to produce evidence 7 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 8 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 9 criteria under § 1915(g) and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That 10 is the case here. 11 B. Prior “Strikes” 12 A court “‘may take notice of proceedings in other courts, both within and without 13 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 14 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 15 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court 16 finds that Plaintiff, while incarcerated, has had at least four prior civil actions dismissed on 17 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief 18 may be granted. They are: 19 (1) Turner v. Metropolitan Transit System, et al., No. 3:09-cv-00770-L-POR (S.D. 20 Cal. Nov. 11, 2009) (Doc. 6) (denying amended motion to proceed IFP and dismissing 21 amended complaint for failing to state a claim); 22 (2) Turner v. Corporal Saunder, et al., No. 3:13-cv-01368 MMA-DHB (S.D. Cal. 23 June 18, 2013) (Doc. 3) (dismissing action as frivolous and denying motion to proceed IFP 24 as moot); 25 (3) Turner v. County of San Diego, et al., No. 3:13-cv-02288 LAB-RBB (S.D. Cal. 26 Nov. 12, 2013) (Doc. 7) (granting motion to proceed IFP and dismissing complaint for 27 failing to state a claim); and 28 1 (4) Turner v. County of San Diego, et al., No. 3:14-cv-01965-LAB-WVG (S.D. Cal. 2 Sept. 8, 2015) (Doc. 7) (dismissing action for failure to state a claim and as frivolous). 3 Accordingly, Plaintiff has accumulated at least four “strikes” as defined by 4 § 1915(g). 5 C. Imminent Danger of Serious Physical Injury 6 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 7 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 8 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 9 52. The Court has reviewed Plaintiff’s Complaint and concludes it contains no “plausible 10 allegations” to suggest Plaintiff 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)). 12 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 13 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 14 imminent danger of serious physical injury at the time he filed his Complaint, he is not 15 entitled to the privilege of proceeding IFP in this action. See id.; see also Rodriguez v. 16 Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not 17 prevent all prisoners from accessing the courts; it only precludes prisoners with a history 18 of abusing the legal system from continuing to abuse it while enjoying IFP status.”). 19 III. CONCLUSION AND ORDER 20 Good cause appearing, the Court: 21 1. DENIES Plaintiff’s Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g); 22 2. DISMISSES this civil action sua sponte without prejudice for failing to 23 prepay the $405 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 24 3. CERTIFIES that an IFP appeal from this Order would not be taken in good 25 faith pursuant to 28 U.S.C. §1915(a)(3), and 26 4. DIRECTS the Clerk of the Court to close the file. 27 /// 28 /// 1 || IT ISSO ORDERED. 2 DATE: May 7, 2024 ; 4 ONY RUTH BERMUBEZ MONTENEGRO UNITED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5