United States District Court, S.D. California
November 9, 2005.
JOSE ALFREDO OCHOA MORANDO, CDC #H-48302, Plaintiff,
ROSA GARCIA, Defendant.
The opinion of the court was delivered by: MARILYN HUFF, District Judge
(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);
(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.
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
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
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.
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