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Hatcher v. Aurther

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Aug 19, 2019
Case No. 19-cv-00652-BAS-BLM (S.D. Cal. Aug. 19, 2019)

Opinion

Case No. 19-cv-00652-BAS-BLM

08-19-2019

ROBERT HATCHER, CDCR #BJ8474, Plaintiff, v. OLIVA AURTHER, et al., Defendants.


ORDER:

(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g)
[ECF No. 3]

(2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a)

Pro se Plaintiff Robert Hatcher, formerly housed at the San Diego Central Jail, has filed a civil rights Complaint ("Compl.") pursuant to 42 U.S.C. § 1983. (ECF No. 1.) Plaintiff has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a). Instead, he has filed a motion to proceed in forma pauperis ("IFP") (ECF No. 3). For the reasons herein, the Court denies Plaintiff's IFP motion and dismisses this action without prejudice.

Plaintiff is now a state inmate currently housed at the California Institution for Men located in Chino, California. See https://inmatelocator .cdcr.ca.gov/ (website last visited Aug. 16, 2019).

MOTION TO PROCEED IFP STANDARD

"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cty. Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). "Prisoners" like Plaintiff, however, "face an additional hurdle." Id. In addition to requiring prisoners to "pay the full amount of a filing fee," in "increments" as provided by 28 U.S.C. § 1915(a)(3)(b), Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP:

. . . if [a] 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) (hereinafter "Andrews"). "Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereinafter "Cervantes") (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]"). 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). "[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date." Id. at 1311.

"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 failed to state a claim," Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even if the district court styles such dismissal as a denial of the prisoner's application to file the action without prepayment of the full filing fee," O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal court unless he can show he is facing "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)'s exception for IFP complaints which "make[] a plausible allegation that the prisoner faced 'imminent danger of serious physical injury' at the time of filing.").

APPLICATION

As an initial matter, the Court has carefully reviewed Plaintiff's Complaint and has ascertained that it does not contain "plausible allegations" which suggest he "faced 'imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)).

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.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court takes judicial notice that Plaintiff, while incarcerated, has brought at least three prior civil actions which have been dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28 U.S.C. § 1915(g). They are:

(1)Hatcher v. Aurthur, No. 3:18-cv-00491-LAB-KSC (S.D. Cal. Mar. 31, 2018) (Order Denying Motion to Proceed IFP and Dismissing Civil Action as Frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)) (strike one);

(2)Hatcher v. Monahan, No. 3:18-cv-00492-CAB-KSC (S.D. Cal. June 14, 2018) (Order Dismissing Civil Action for Failing to State a Claim and for Failing to Prosecute) (strike two); and

(3)Hatcher v. Dr. Blake, No. 3:18-cv-00561-MMA-MDD (S.D. Cal. July 17, 2018) (Order Dismissing Civil Action pursuant to 28 U.S.C. §§ 1915(e)(2), 1915A(b) and for Failing to Prosecute) (strike three).
Accordingly, because Plaintiff has, while incarcerated, accumulated at least the three "strikes" permitted pursuant to § 1915(g), and he fails to make a "plausible allegation" that he faced imminent danger of serious physical injury at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) "does not prevent all prisoners from accessing the courts; it only precludes prisoners with a history of abusing the legal system from continuing to abuse it while enjoying IFP status"); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) ("[C]ourt permission to proceed IFP is itself a matter of privilege and not right.").

CONCLUSION & ORDER

For the foregoing reasons, the Court hereby:

(1) DENIES Plaintiff's motion to proceed IFP (ECF No. 3) as barred by 28 U.S.C. § 1915(g); and

(2) DISMISSES this civil action sua sponte WITHOUT PREJUDICE for failure to prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a). The Clerk of Court is directed to mail a copy of this Order to Plaintiff at California Institution for Men, P.O. Box 3100, Chino, California.

The Clerk shall close the file.

IT IS SO ORDERED.

DATED: August 19, 2019

/s/ _________

Hon. Cynthia Bashant

United States District Judge


Summaries of

Hatcher v. Aurther

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Aug 19, 2019
Case No. 19-cv-00652-BAS-BLM (S.D. Cal. Aug. 19, 2019)
Case details for

Hatcher v. Aurther

Case Details

Full title:ROBERT HATCHER, CDCR #BJ8474, Plaintiff, v. OLIVA AURTHER, et al.…

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Aug 19, 2019

Citations

Case No. 19-cv-00652-BAS-BLM (S.D. Cal. Aug. 19, 2019)