Turner v. Commissioner

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 STEVEN DEON TURNER, Case No. 3:22-cv-00231-LAB-AGS CDCR #AV2541, 11 ORDER: Plaintiff, 12 vs. (1) REVOKING IN FORMA 13 PAUPERIS STATUS AS BARRED 14 BY 28 U.S.C. § 1915(g); and COMMISSIONER, INTERNAL 15 REVENUE SERVICE, OFFICE OF (2) DIRECTING PLAINTIFF TO PAY TREASURER, DEPARTMENT OF 16 CIVIL FILING FEE REQUIRED BY TREASURY, 28 U.S.C. § 1914(a) 17 Defendants. 18 19 On February 17, 2022, Plaintiff Steven Deon Turner, who is incarcerated at 20 R.J. Donovan State Prison in San Diego, California (“RJD”) and is proceeding pro 21 se, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Dkt. 1, Complaint 22 (“Compl.”)). Turner didn’t prepay the civil filing fee required to commence a civil 23 action at the time he filed his Complaint but has filed a Prison Certificate and an 24 Inmate Trust Account Statement, which the Court liberally construed as a motion 25 for leave to proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). 26 (Dkt. 2). 27 On March 8, 2022, the Court granted Turner IFP status and dismissed his 28 Complaint with leave to amend. (Dkt. 4). Turner was given sixty days to file an 1 amended complaint that cured the deficiencies outlined in the Court’s Order. (Id.). 2 Turner filed an Amended Complaint (“Am. Compl.”) on April 8, 2022. (Dkt. 7). 3 I. Revoking IFP Status 4 The Prison Litigation Reform Act (“PLRA”) amended section 1915 to 5 preclude the privilege to proceed IFP in cases where the prisoner: 6 . . . has, on 3 or more prior occasions, while incarcerated 7 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the 8 grounds that it is frivolous, malicious, or fails to state a 9 claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 10 11 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 12 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 13 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also 14 Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) 15 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits 16 may entirely be barred from IFP status under the three strikes rule”). The objective 17 of the PLRA is to further “the congressional goal of reducing frivolous prisoner 18 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 19 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 20 which were dismissed on the ground that they were frivolous, malicious, or failed 21 to state a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), 22 “even if the district court styles such dismissal as a denial of the prisoner’s 23 application to file the action without prepayment of the full filing fee.” O’Neal v. 24 Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 25 determine whether it counts as a strike, the style of the dismissal or the procedural 26 posture is immaterial. Instead, the central question is whether the dismissal ‘rang 27 the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 28 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 1 607, 615 (4th Cir. 2013)). 2 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his 3 pursuit of any subsequent IFP civil action or appeal in federal court unless she 4 faces “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); 5 Cervantes, 493 F.3d at 1051–52 (noting § 1915(g)’s exception for IFP complaints 6 which “make[] a plausible allegation that the prisoner faced ‘imminent danger of 7 serious physical injury’ at the time of filing.”). Section 1915(g)’s “imminent danger” 8 exception cannot be triggered solely by complaints of past injury or generalized 9 fears of possible future harm. See id. at 1053 (“The exception’s use of the present 10 tense, combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, 11 indicates to us that the exception applies if the danger existed at the time the 12 prisoner filed the complaint.”). The “common definition of ‘imminent’ . . . does not 13 refer only to events that are already taking place, but to those events ‘ready to take 14 place’ or ‘hanging threateningly over one’s head.’” Id. at 1056. The Court has 15 carefully reviewed Turner’s original Complaint and Amended Complaint and finds 16 they include no “plausible allegations” to suggest he “faced ‘imminent danger of 17 serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 18 28 U.S.C. § 1915(g)). 19 Defendants typically carry the initial burden to produce evidence 20 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 21 1119, but “in some instances, the district court docket may be sufficient to show 22 that a prior dismissal satisfies at least one of the criteria under § 1915(g) and 23 therefore counts as a strike.” Id. at 1120. Therefore, this Court takes judicial notice 24 of federal court docket proceedings available on PACER1 and finds that Plaintiff 25 26 27 1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) 28 1 Steven Deon Turner, currently identified under CDCR #AV2541, while 2 incarcerated, has had four prior prisoner civil actions or appeals dismissed on the 3 grounds that they were frivolous, malicious, or failed to state a claim upon which 4 relief may be granted. They are: 5 (1) Turner v. United States District Court for the Central District of California, Civil Case No. 2:20-cv-02610-RGK- 6 MRW (C.D. Cal. Apr. 17, 2020) (Order Denying Motion to 7 Proceed IFP and Dismissing Complaint for failing to state a claim) (Dkt. 6) (strike one); 8 9 (2) Turner v. Dailo, et al., Civil Case No. 2:20-cv-06688- RGK-MRW (C.D. Cal. July 21, 2020) (Order Denying 10 Motion to Proceed IFP and Dismissing Complaint for failing 11 to state a claim) (Dkt. 8) (strike two); 12 (3) Turner v. United States District Court for the Central 13 District of California, Civil Case No. 20-55495 (9th Cir. Sept. 11, 2020) (Order Dismissing Appeal as frivolous) 14 (Dkt. 9) (strike three)2; and 15 (4) Turner v. Gibson, et al., Civil Case No. 1:21-cv- 16 01175-AWI-BAM (E.D. Cal. Oct 18, 2021) (Order Adopting 17 R&R and Dismissing Complaint for failing to state a claim) (Dkt. 16) (strike four). 18 19 Accordingly, because Turner has, while incarcerated, accumulated more 20 than three “strikes” pursuant to § 1915(g), and he fails to make a “plausible 21 22 23 “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 24 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. 25 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). 26 2 See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015) (finding that appellate 27 court’s denial of prisoner’s request for IFP status on appeal on grounds of frivolousness constituted a “strike” under § 1915(g)). 28 1 allegation” that he faced imminent danger of serious physical injury at the time he 2 his Complaint or Amended Complaint, he is not entitled to the privilege of 3 || proceeding IFP in this civil action. See Cervantes, 493 F.3d at 1055; Rodriguez v. 4 || Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does 5 prevent all prisoners from accessing the courts; it only precludes prisoners with 6 ||a history of abusing the legal system from continuing to abuse it while enjoying IFP 7 ||status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt 8 || permission to proceed IFP is itself a matter of privilege and not right.”). Accordingly, 9 || Turner is not entitled to proceed IFP. 10 Conclusion and Order 11 For the reasons set forth above, the Court: 12 (1) REVOKES Turner’s IFP status as barred by 28 U.S.C. § 1915(g); 13 (2) DIRECTS Turner to pay the full statutory and administrative $402 civil 14 filing fee required by 28 U.S.C. § 1914(a) no later than thirty (30) days from the 15 of this Order. If Turner doesn’t pay the civil filing fee by that date, the Court 16 || will dismiss the action.* 17 IT IS SO ORDERED. 18 DATE: June 13, 2022 lau A. (Buywy 19 Hon. Larry A. Burns 0 United States District Judge 21 22 23 25 If Turner does pay the civil filing fee within the time stated, the Court will screen %6 the Amended Complaint pursuant to 28 U.S.C. § 1915A. Based ona preliminary review of the allegations in the Amended Complaint, the Court will likely dismiss 27 action without leave to amend for failure to state a claim. See Ashcroft v. Iqbal, 28 556 U.S. 662, 678 (2009). 5 ee