Opinion
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) AND CERTIFYING THAT IN FORMA PAUPERIS APPEAL WOULD NOT BE TAKEN IN GOOD FAITH PER 28 U.S.C. § 1915(a)(3)
MARILYN HUFF, District Judge.
Plaintiff, an inmate currently incarcerated at California Correctional Institute ("CCI") in Tehachapi, California, and proceeding pro se, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that R.J. Donovan State Prison ("RJD") and Correctional Officers McCurty, Harris and Doe violated his rights by "making fun" of him and using their "authority" to deny him one specific dose of medication on August 30, 2004. (Compl. at 1-3.) Plaintiff asserts only vague and conclusory allegations in his Complaint and refers the Court to several CDC 602 appeals and attached several type-written pages entitled "Donovan State Prison." ( See Pl.'s Attachment at 1-22.) Plaintiff seeks $500,000 in general and punitive damages, as well as $500,000 in "other" damages. ( Id. at 7.)
Only "deliberate indifference" to serious medical needs states a cause of action under § 1983. Estelle v. Gamble, 429 U.S. 97, 105 (1976). As currently pleaded, Plaintiff's allegations demonstrate only a difference of opinion between a prisoner and medical personnel as to the appropriate dose of insulin on one particular occasion. As such, Plaintiff's claims do not rise to the level of an Eighth Amendment violation. See Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (To establish that a difference of opinion amounted to "cruel and unususal punishment, " the prisoner must allege facts to show that "the course of treatment the doctors chose was medically unacceptable under the circumstances" and that they chose this course "in conscious disregard of an excessive risk to [the prisoner's] health."). "Isolated occurrences, " Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990), or "isolated exception[s], " Toussaint v. McCarthy, 801 F.2d 1080, 1111 (9th Cir. 1986), to the Defendants' overall course of treatment are generally insufficient to support a finding of deliberate indifference. McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992), overruled on other grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). Therefore, even if Plaintiff were entitled to proceed IFP in this action, his Complaint fails to state an Eighth Amendment claim upon which relief can be granted and thus, it would require sua sponte dismissal pursuant to 28 U.S.C. § 1915A(b)(1). See Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).
Plaintiff has not prepaid the $250 filing fee mandated by 28 U.S.C. § 1914(a) to commence a civil action; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].
I. Motion to Proceed IFP
Section 1915 of Title 28 of the United States Code allows certain litigants to pursue civil litigation IFP, that is, without the full prepayment of fees or costs. 28 U.S.C. § 1915(a)(2). However, the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed 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 can be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). "This subdivision is commonly known as the three strikes' provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). "Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id. The objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner litigation in federal court." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
"Strikes' are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim." Andrews, 398 F.3d at 1116 n.1. Thus, once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other action IFP in federal court unless he is in "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g).
The Ninth Circuit has held that section 1915(g) does not violate a prisoner's right to access to the courts, due process or equal protection; nor does it violate separation of powers principles or operate as an ex post facto law. Rodriguez v. Cook, 169 F.3d 1176, 1179-82 (9th Cir. 1999); see also Andrews, 398 F.3d at 1123 (noting constitutionality of § 1915(g), but recognizing that "serious constitutional concerns would arise if § 1915(g) were applied to preclude those prisoners who had filed actions who were not frivolous, malicious, or fail[ing] to state a claim' from proceeding IFP.").
While the PLRA does not require a prisoner to declare that § 1915(g) does not bar his request to proceed IFP, Andrews, 398 F.3d at 1119, "[i]n some instances, the district court docket records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike." Id. at 1120. When applying 28 U.S.C. § 1915(g), however, the court must "conduct a careful evaluation of the order dismissing an action, and other relevant information, " before determining that the action "was dismissed because it was frivolous, malicious or failed to state a claim, " since "not all unsuccessful cases qualify as a strike under § 1915(g)." Id. at 1121. The Seventh Circuit likewise requires the district court to cite the specific case names, numbers, districts and dates of dismissal for each civil action it has determined to be a "strike" or "prior occasion." Id. at 1120 (citing Evans v. Illinois Dep't of Corrections, 150 F.3d 810, 811-12 (7th Cir. 1998)).
For example, in Andrews, the Ninth Circuit specifically found that neither the "dismissal of an appeal for lack of jurisdiction, " nor "dismissals of actions brought while the plaintiff was in the custody of the INS" count as strikes under § 1915(g). Andrews, 398 F.3d at 1121-22. Nor do dismissed habeas petitions, unless the court makes a determination that the dismissed habeas petition was "little more than a 42 U.S.C. § 1983 action mislabeled as [a] habeas petition so as to avoid the penalties imposed by 28 U.S.C. § 1915(g)." Id. at 1122 (citing Naddi v. Hill, 106 F.3d 275, 277 (9th Cir. 1997) & n.12. Therefore, where the court's docket of previous cases does not reflect the basis for dismissal, the burden shifts to the defendants to "produce court records or other documentation that will allow the district court to determine that a prior case was dismissed because it was frivolous, malicious or fail[ed] to state a claim.'" Andrews, 398 F.3d at 1120 (citing 28 U.S.C. § 1915(g)). "Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by explaining why a prior dismissal should not count as a strike." Id.
The Ninth Circuit has held that "the phrase fails to state a claim on which relief may be granted, ' as used elsewhere in § 1915, parallels the language of Federal Rule of Civil Procedure 12(b)(6).'" Id. at 1121 (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). Andrews further holds that a case is "frivolous" for purposes of § 1915(g) "if it is of little weight or importance" or "ha[s] no basis in law or fact." 398 F.3d at 1121 (citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) ("[A] complaint, containing as it does both factual allegations and legal conclusions, is frivolous [under 28 U.S.C. § 1915] where it lacks an arguable basis in either law or in fact.... [The] term frivolous, ' when applied to a complaint, embraces not only the inarguable legal conclusion, but also the fanciful factual allegation."). "A case is malicious if it was filed with the intention or desire to harm another." Andrews, 398 F.3d at 1121 (quotation and citation omitted).
II. Application of 28 U.S.C. § 1915(g)
The Court notes as an initial matter that Plaintiff has alleged no facts to show that he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g); Rodriguez, 169 F.3d at 1178; see also Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998) (finding that "allegations that the prisoner faced imminent danger in the past" are insufficient to trigger section 1915(g)'s imminent and serious physical injury exception). Thus, regardless of Plaintiff's financial status, he may not proceed IFP pursuant to 28 U.S.C. § 1915 if he has, on three prior occasions while incarcerated, had federal civil actions or appeals dismissed as frivolous or malicious or for failing to state a claim. See 28 U.S.C. § 1915(g); Andrews, 398 F.3d at 1119-20; Rodriguez, 169 F.3d at 1178.
A court "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." United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Here, the Court takes judicial notice that Plaintiff has had more than three prior prisoner civil actions dismissed in the Southern District of California on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A. See Franklin v. RSL Properties Kingston Estates, et al., S.D. Cal. Civil Case No. 05-0371 IEG (WMc) (April 27, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim per 28 U.S.C. § 1915(e)(2)(B)(ii) [Doc. No. 4]); Franklin v. Edward Mondane, et al., S.D. Cal. Civil Case No. 05-0372 DMS (JFS) (April 28, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim and seeking damages against immune defendants per 28 U.S.C. § 1915(e)(2)(B)(ii) and (iii) [Doc. No. 4]); Franklin v. Champion Signs, et al., S.D. Cal. Civil Case No. 05-0433 J(POR) (May 2, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim per 28 U.S.C. § 1915(e)(2)(B)(ii) [Doc. No. 4]); Franklin v. Hugo & Patty Preimar Realty, S.D. Cal. Civil Case No. 05-0434 H (BLM) (May 3, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim and as frivolous per 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) [Doc. No. 4]); Franklin v. County of San Diego Social Service Welfare Dep't, S.D. Cal. Civil Case No. 05-0630 L (RBB) (May 6, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim and for seeking damages against immune Defendants per 28 U.S.C. § 1915(e)(2)(B)(ii), (iii) and § 1915A(b)(1) & (2) [Doc. No. 5]); Franklin v. Gibert and Dep't of the Public Defender, Inc., S.D. Cal. Civil Case No. 05-0510 W (PCL) (May 27, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim per 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) [Doc. No. 4]); and Franklin v. Tom Kelly and Dep't of the Public Defender, Inc., S.D. Cal. Civil Case No. 05-0517 IEG (NLS) (May 27, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim per 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) [Doc. No. 4].)
The Court further notes that Plaintiff was specifically warned of 28 U.S.C. § 1915(g)'s "three strikes" provision in each of the cases listed above, as well as in Franklin v. San Diego Police Dept., et al., S.D. Cal. Civil Case No. 05-0488 LAB (JMA) (May 23, 2005 Order Granting IFP and Dismissing Complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1) [Doc. No. 4]). While this additional case may later be considered yet another of Plaintiff's "strikes" under § 1915(g), the Court will not consider it as such until a judgment becomes final. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996) ("A dismissal should not count against a petitioner [as a strike under § 1915(g)] until he has exhausted or waived his appeals."); Jennings v. Natrona County Detention Center Medical Facility, 175 F.3d 775, 780 (10th Cir. 1999) ("[A] § 1915(e)(2)(B) dismissal should not count [as a strike under § 1915(g)] against a litigant until he has exhausted or waived his appeals."). While the strikes identified above have become final by virtue of Plaintiff's failure to amend and/or appeal this Court's Orders of Dismissal, Plaintiff did file an Amended Complaint Franklin v. San Diego Police Dep't, S.D. Cal. Civil Case No. 05-0488 LAB (JMA) on June 16, 2005 [Doc. No. 5], and Judge Burns has yet to conduct his initial screening of that amended pleading pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Therefore, Judge Burns' May 23, 2005 Order Granting Plaintiff IFP and sua sponte dismissing his Complaint per 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) has yet to become a final Order; consequently, it will not be counted as a "strike" against Plaintiff at this time.
Accordingly, because Plaintiff has, while incarcerated, accumulated more than three "strikes" pursuant to § 1915(g), and does not presently allege facts sufficient to show that he is under imminent danger of serious physical injury, the Court DENIES Plaintiff's Motion to Proceed IFP [Doc. No. 2]. See Andrews, 398 F.3d at 1121; Rodriguez, 167 F.3d at 1178.
III. Conclusion and Order
For all the reasons set forth above, the Court hereby:
(1) DENIES Plaintiff's Motion to Proceed IFP pursuant to 28 U.S.C. § 1915(g) [Doc. No. 2]; and
(2) CERTIFIES that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous).
The Clerk shall close the file.
IT IS SO ORDERED.