Green v. Warden ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GREEN, Case No.: 3:21-cv-0588-JLS-WVG aka KEVIN DEAN BREWER, 12 CDCR #AC-5033, ORDER (1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS Plaintiff, AS BARRED BY 28 U.S.C. § 1915(g) 14 vs. AND (2) DISMISSING CIVIL 15 ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING 16 WARDEN, et al., FEE REQUIRED BY 28 U.S.C. 17 Defendant. § 1914(a) 18 (ECF No. 2) 19 20 21 Plaintiff Michael Green, also known as Kevin Dean Brewer, currently incarcerated 22 at Richard J. Donovan Correctional Facility (“RJD”), in San Diego, California, has filed a 23 civil rights Complaint pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff 24 has filed a certified copy of his inmate trust account statement, which the Court has liberally 25 construed to be a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF No. 2.) 26 /// 27 /// 28 /// 1 LEGAL STANDARD 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 3 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 4 an additional hurdle.” Id. 5 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 6 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 7 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 8 proceed IFP in cases where the prisoner: 9 . . . has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 10 the United States that was dismissed on the grounds that it is 11 frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of 12 serious physical injury. 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). “Pursuant to 15 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 16 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 17 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 18 from IFP status under the three strikes rule”). The objective of the PLRA is to further “the 19 congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. 20 Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 21 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 22 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 23 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 24 styles such dismissal as a denial of the prisoner’s application to file the action without 25 prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 26 When courts “review a dismissal to determine whether it counts as a strike, the style of the 27 dismissal or the procedural posture is immaterial. Instead, the central question is whether 28 1 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 2 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 3 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single 4 action,” however, courts may “assess a PLRA strike only when the case as a whole is 5 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 6 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 7 Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 10 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 11 52 (noting § 1915(g)’s exception for IFP complaints, which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 13 ANALYSIS 14 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while 17 Defendants typically carry the initial burden to produce evidence demonstrating a prisoner 18 is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district 19 court docket may be sufficient to show that a prior dismissal satisfies at least one on the 20 criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case 21 here. 22 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 23 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 24 United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner 25 Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of 26 proceedings in other courts, both within and without the federal judicial system, if those 27 proceedings have a direct relation to matters at issue,’” Bias v. Moynihan, 508 F.3d 1212, 28 /// 1 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2 2002)). 3 Based on a review of its own dockets and other court proceedings publicly available 4 on PACER, the Court finds that Plaintiff Michael Green, also known as Kevin Dean 5 Brewer, identified as CDCR Inmate #AC-5033, while incarcerated, has had four prior civil 6 actions dismissed on the grounds that they were frivolous, malicious, or failed to state a 7 claim upon which relief may be granted. 8 They are: 9 1) Brewer v. Alta Bates Summit Medical Ctr., et al., Civil Case No. 3:08-cv-03149-SI (N.D. Cal. Jan. 26, 2009) (order 10 dismissing action for failing to state a claim pursuant to 28 11 U.S.C. § 1915A) (ECF No. 24) (strike one); 12 2) Brewer v. Alta Bates Summit Medical Ctr., et al., Civil 13 Case No. 3:11-cv-02703-THE (N.D. Cal. Oct. 20, 2011) (order dismissing action for failing to state a claim pursuant to 28 14 U.S.C. § 1915A) (ECF No. 16) (strike two); 15 3) Brewer v. Oh, et al., Civil Case No. 5:15-cv-00877-MWF- 16 AJW (C.D. Cal. May 8, 2015) (order denying request to proceed 17 IFP based on finding complaint was frivolous, malicious, and failed to state a claim) (ECF No. 4) (strike three)1; 18 19 4) Green v. Hathaway, et al., Civil Case No. 2:17-cv-01598- MCE-CKD (E.D. Cal. Oct. 1, 2018) (order adopting report and 20 recommendation dismissing second amended complaint for 21 failing to state a claim) (strike four). 22 23 /// 24 25 1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“[W]hen (1) a district court 26 dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave 27 to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). 28 1 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 2 || “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 3 ||imminent danger of serious physical injury at the time he filed his Complaint, he is not 4 || entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 5 || Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 6 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing 7 || the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 8 Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is 9 || itself a matter of privilege and not right.”). 10 CONCLUSION 11 For the reasons discussed, the Court: 12 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 13 ||U.S.C. § 1915(g); 14 (2) DISMISSES this civil action sua sponte without prejudice for failing to 15 || prepay the $402 civil and administrative filing fees required by 28 U.S.C. § 1914(a); 16 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 17 28 U.S.C. § 1915(a)(3); and 18 (4) DIRECTS the Clerk of the Court to close the file. 19 IT IS SO ORDERED. 20 Dated: April 20, 2021 tt f te 21 on. Janis L. Sammartino 9 United States District Judge 23 24 25 26 27 28