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KIRKPATRICK v. KAIVAN

United States District Court, S.D. California


October 11, 2005.

THOMAS L. KIRKPATRICK, CDC #K-73310, Plaintiff,
v.
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 proceeding 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). 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).

  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.

20051011

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