United States District Court, S.D. California
October 11, 2005.
THOMAS L. KIRKPATRICK, CDC #K-73310, Plaintiff,
KAIVAN, et al., Defendants.
The opinion of the court was delivered by: M. LORENZ, District Judge
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED
BY 28 U.S.C. § 1915(g)
Plaintiff, a state prisoner proceeding pro se, and currently
incarcerated at Ironwood State Prison in Blythe, California, has
submitted a civil rights complaint pursuant to 42 U.S.C. § 1983.
Plaintiff alleges various constitutional violations by Defendants
Kaivan, Giurbino and Woodford. Plaintiff has also submitted a
Motion to Proceed In Forma Pauperis ("IFP") pursuant to
28 U.S.C. § 1915(a) [Doc. No. 2]. A. 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 of 1995
("PLRA") amended section 1915 to bar a prison inmate from
. . . 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
28 U.S.C. § 1915(g). 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
Thus, once a prisoner has filed three civil actions or appeals
that have been dismissed as frivolous or malicious or for failure
to state a claim (the Court will refer to such dismissed
complaints as "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. See Rodriguez v. Cook,
169 F.3d 1176, 1179-81 (9th Cir. 1999). Nor does it violate separation of
powers principles or operate as an ex post facto law. Id. at
1181-82. When applying 28 U.S.C. § 1915(g), however, a court
should cite the specific case names, numbers, districts and dates
of dismissal for each civil action it considers a "strike" or
"prior occasion." See Evans v. Illinois Dep't of Corrections,
150 F.3d 810, 811-12 (7th Cir. 1998).
B. 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; 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); 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); St. Louis Baptist
Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979).
Here, the Court takes judicial notice that Plaintiff has had at
least three prior prisoner civil actions dismissed in the
Southern and Central Districts 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 Kirkpatrick v. Dep't of Corrections, et al.,
S.D. Civil Case No. 04cv2108 WQH (WMc) (Order Dismissing Second
Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(b) &
1915A(b) (strike one); Kirkpatrick v. Martinez, et al., C.D.
Civil Case No. 00cv2523 CW (Order Denying IFP and Dismissing
Complaint for failing to state a claim) (strike two); and
Kirkpatrick v. Orange Cty Sup. Ct., et al., C.D. Civil Case No.
03cv6245 (Order Denying IFP and Dismissing Complaint for failing
to state a claim and seeking monetary damages against Defendants
who are immune) (strike three).
Accordingly, because Plaintiff has, while incarcerated,
accumulated 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 Rodriguez,
167 F.3d at 1178. C. Conclusion and Order
For the reasons set forth above, the Court hereby:
DENIES Plaintiff's Motion to Proceed IFP pursuant to
28 U.S.C. § 1915(g) [Doc. No. 2] and dismisses this action for
failing to pay the initial filing fee.
IT IS SO ORDERED.
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