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MORANDO v. GARCIA

United States District Court, S.D. California


November 9, 2005.

JOSE ALFREDO OCHOA MORANDO, CDC #H-48302, Plaintiff,
v.
ROSA GARCIA, Defendant.

The opinion of the court was delivered by: MARILYN HUFF, District Judge

ORDER:

(1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [Doc. No. 2];
(2) SUA SPONTE DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND AS FRIVOLOUS PURSUANT TO 28 U.S.C. § 1915A(b);
AND
(3) CERTIFYING THAT IN FORMA PAUPERIS APPEAL WOULD NOT BE TAKEN IN GOOD FAITH PER 28 U.S.C. § 1915(a)(3)
Plaintiff, a state prisoner proceeding pro se, and currently incarcerated at Avenal State Prison in Avenal, California, has submitted a civil rights Complaint pursuant to 42 U.S.C. § 1983. While his Complaint is very difficult to understand, it appears Plaintiff is claiming that the former Warden of Centinela State Prison ("CEN") authorized or conspired with other unidentified CEN officials to kill him in 1991, 1992, 1995, 1997, 1999 and 2001. (See Compl. at 1-6.) Plaintiff seeks $500 million in both compensatory and punitive damages, and sets forth an incomprehensible request for injunctive relief. (Id. at 7.)

Plaintiff has not prepaid the $250 civil filing fee required by 28 U.S.C. § 1914(a); instead he had submitted 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).*fn1 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.*fn2 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)).

  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 at least 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 Ochoa v. Cambra, Civil Case No. 98-0407 JM (AJB) (S.D. Cal. April 3, 1998) (Order Denying Motion to Proceed IFP and Dismissing Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A) [Doc. No. 3] (strike one); Ochoa v. Cambra, Civil Case No. 98-1129 K (LAB) [R] (S.D. Cal. July 23, 1998) (Order Denying Motion to Proceed IFP and Dismissing Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A) [Doc. No. 4] (strike two); and Ochoa v. Cambra, Civil Case No. 98-1323 J (JFS) (S.D. Cal. Sept. 21, 1998) (Order Denying Motion to Proceed IFP and Dismissing First Amended Complaint pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A) [Doc. No. 7] (strike three).*fn3 Accordingly, because Plaintiff has, while incarcerated, accumulated at least 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.

  III. Sua Sponte Screening per 28 U.S.C. § 1915A(b)

  The Court further finds that even if Plaintiff's current Complaint were not subject to 28 U.S.C. § 1915(g)'s "three strikes" provision, it would nevertheless remain subject to sua sponte dismissal under 28 U.S.C. § 1915A. This provision of the PLRA mandates that the Court sua sponte screen and dismiss complaints filed by prisoners seeking redress from a governmental entity or officer or employee of a governmental entity if it finds that the complaint, or any portion of it, is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks damages from defendants who are immune. See 28 U.S.C. § 1915A(b); Resnick v. Hayes, 213 F.3d 443, 446-47 (9th Cir. 2000).

  A complaint is frivolous "where it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Further, the district court may dismiss a duplicative complaint as frivolous if it "merely repeats pending or previously litigated claims." Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995) (citations omitted); see also Denton v. Hernandez, 504 U.S. 25, 30 (1992) (recognizing Congress's concern that "a litigant whose filing fees and court costs are assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive lawsuits") (quotation omitted).

  A review of the record in this district shows that Plaintiff's attempted murder claims are, as far as the Court can decipher, duplicative of those he presented, and had dismissed, in at least eight of his previous section 1983 complaints. See Ochoa v. Garcia, S.D. Cal. Civil Case No. 98-1840 (POR); Ochoa v. Cambra, S.D. Cal. Civil Case No. 98-2192 TW (LSP); Ochoa v. Garcia, S.D. Cal. Civil Case No. 99-0567 (CGA); Ochoa Morando v. Smith, S.D. Cal. Civil Case No. 00-0251-J (LAB); Ochoa Morando v. Garcia, 00-0262 H (LAB); Ochoa Morando v. Smith, S.D. Cal. Civil Case No. 00-1068 K (NLS); Ochoa Morando v. Smith, S.D. Cal. Civil Case No. 00-1419 BTM (AJB); Morando v. Garcia, S.D. Cal. Civil Case No. 05-0318 W (PCL); Cato, 70 F.3d at 1105 n. 2. To the extent that some allegations may not be duplicative, the Court nevertheless finds them frivolous under 1915A(b)(1) because they lack even "an arguable basis either in law or in fact." Neitzke, 490 U.S. at 325; Cato, 70 F.3d at 1106.

  IV. Conclusion and Order

  For 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];

  (2) DISMISSES Plaintiff's Complaint without leave to amend as frivolous pursuant to 28 U.S.C. § 1915A(b)(1); and

  (3) CERTIFIES that an IFP appeal from this Order would also 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.

20051109

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