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Ruff v. Ramirez


November 28, 2007


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge



On May 25, 2007, and while incarcerated at California State Prison ("CAL") in Calipatria, California, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff's Complaint alleges several CAL officials violated his Eighth Amendment rights by failing to adequately address his serious medical needs and forcing him to work under conditions which posed a dangerous risk to his compromised physical condition. (See Compl. at 3-11.) Plaintiff seeks both general and punitive damages. (Id. at 14.)

Along with his Complaint, Plaintiff submitted a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a) [Doc. No. 2].

Pursuant to 28 U.S.C. § 1914(a), "[p]laintiffs normally must pay $350 to file a civil complaint in federal district court," but 28 U.S.C. § 1915(a)(1) "allows the district court to waive the fee, for most individuals unable to afford it, by granting IFP status." Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). However, pursuant to the Prison Litigation Reform Act ("PLRA"), filing fees for indigent prisoners are not waived. Id. at 1052. Prisoners may still be granted leave to proceed IFP, but in addition to an affidavit showing an inability to pay, see 28 U.S.C. § 1915(a)(1), they must provide certified copies of their prison trust account statements, id. § 1915(a)(2), and must pay an initial partial filing fee calculated pursuant to statute and dependent on ability to pay. Id. § 1915(b)(1), (2) & (4). Most significantly, prisoners, unlike other litigants granted leave to proceed IFP, remain obligated to pay the entire $350 balance of fees owed in installments. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).

On June 12, 2007, this Court found Plaintiff had submitted an affidavit which complied with 28 U.S.C. § 1915(a)(1), and that he had attached a certified copy of his prison trust account statement showing insufficient funds with which to pay any initial partial filing fees pursuant to 28 U.S.C. § 1915(b)(4). (See June 12, 2007 Order [Doc. No. 3] at 2.) Therefore, Plaintiff was granted leave to proceed IFP, but the California Department of Corrections and Rehabilitation ("CDCR") was simultaneously to collect the $350 civil filing fees from Plaintiff's prison trust account in installments and forward them to the Clerk pursuant to 28 U.S.C. § 1915(b)(1). (Id.) In the same Order, the Court screened Plaintiff's Complaint as required by 28 U.S.C. § 1915(e)(2) and § 1915A(b), determined that his allegations were sufficient to survive initial review, and directed the United States Marshal to effect service upon Defendants on Plaintiff's behalf pursuant to 28 U.S.C. § 1915(d) and FED.R.CIV.P. 4(c)(2). (Id. at 2-4.)


On August 28, 2007 and August 29, 2007, Defendants filed a Motion and Amended Motion "Requiring Plaintiff to Pay Filing Fee due to his Three-Strike Status" [Doc. Nos. 12, 13]. Defendants essentially ask the Court to revoke that part of its June 12, 2007 Order granting Plaintiff leave to proceed IFP and to instead Order Plaintiff to pay the entire $350 civil filing mandated by 28 U.S.C. § 1914(a) in full, rather than in installments, before permitting him to proceed with the prosecution of his case. Specifically, Defendants argue that Plaintiff is not entitled to IFP status based on his previous litigation history. See 28 U.S.C. § 1915(g).

Plaintiff has filed a Response to Defendants' Motion [Doc. No. 18], to which Defendants have filed a Reply [Doc. No. 19]. While the Court initially set a hearing date of October 9, 2007, it has vacated that hearing date, finding the matter suitable for decision on the papers as submitted and no oral argument required. See S.D. CAL. CIVLR 7.1(d)(1).


"In general, filing an action IFP is a privilege, not a right." Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999). This privilege is codified in section 1915 of Title 28 of the United States Code, which allows certain impoverished litigants to pursue civil litigation without the full prepayment of fees or costs. Id. at 1177; 28 U.S.C. § 1915(a)(2).

However, regardless of indigence, subsection (g) bars a prisoner 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 § 1915(g), which has become known as the "three strikes" provision, Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005), 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). "Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Andrews, 398 F.3d at 1116 n.1. "'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." Id. 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).

"[A]lthough prisoners [seeking permission to proceed IFP] must demonstrate that they are unable to pay the filing fee with an affidavit and submission of their prison trust account records [at the time they submit their Complaint for filing], Congress did not require prisoners to declare that § 1915(g) does not bar their request to proceed IFP." Andrews, 398 F.3d at 1119. However, when considering a prisoner's application to proceed IFP, this court does take sua sponte judicial notice of its own docket, as well as the dockets of other federal courts, and from those records can occasionally determine that the prisoner is not eligible for IFP status. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (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."). This is possible because "[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." Andrews, 398 F.3d at 1120.

However, the court must "consider[] the underlying court orders or mak[e] an independent assessment of whether the prior cases were frivolous or malicious or failed to state a claim" before denying the prisoner leave to proceed IFP pursuant to 28 U.S.C. § 1915(g), since "not all unsuccessful cases qualify as a strike under § 1915(g)." Id. at 1121. The court must also cite the specific case names, numbers, districts and dates of dismissal for each civil action it considers a "strike" or "prior occasion." Id. (citing Evans v. Illinois Dep't of Corrections, 150 F.3d 810, 811-12 (7th Cir. 1998)).

If the court's review of previous court dockets and underlying dismissal orders is sufficient to show that the prisoner has 3 strikes, it "place[s] [the prisoner] on notice of ... disqualification [for IFP status] under § 1915(g)," by denying his IFP motion, but granting him leave to proceed by prepaying the entire filing fee. Andrews, 398 F.3d at1120. "However, in many instances, the docket records [alone] will not reflect the basis for dismissal." Id. In that case, Plaintiff is granted IFP status, and the "initial production burden" lies with the Defendants who may not simply "rest on the fact of dismissal," but rather must "produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions that were dismissed because they were 'frivolous, malicious, or fail[ed] to state a claim.'" Id. "Once Defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants showing by explaining why a prior dismissal should not count as a strike." Id.

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)). 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." Id. (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).


Defendants claim Plaintiff's IFP status must be revoked, and therefore he must pay the entire $350 civil filing fee in one lump-sum in order to prosecute this civil action he has filed "at least four cases since he has been a prisoner that qualify as 'strikes'" under 28 U.S.C. § 1915(g). See Defs.' Amend. Mot. [Doc. No. 12-3] at 3-4. They are: (1) Ruff v. Rosario, E.D. Cal. Civil Case No. 94-00956-DFL-GGH; (2) Ruff v. Smith, et al., E.D. Cal. Civil Case No. 95-05771-REC-DLB; (3) Ruff v. Gehricke, E.D. Cal. Civil Case No. 96-05178-GEB-HCB; and (4) Ruff v. Terhune, N.D. Cal. Civil Case No. 98-21236-JW. Id. Defendants have lodged copies of the dockets in these cases, as well as copies of each court's orders of dismissal, and ask this Court to take judicial notice of these records. See Defs.' Req. for Judicial Notice [Doc. No. 12-2], Exs. 1-13; Andrews, 398 F.3d at1120; Robinson Rancheria Citizens Council, 971 F.2d at 248.

In his Opposition, Plaintiff does not "show or explain" how or why these four previous dismissals should not count as "strikes" against him. See Andrews, 398 F.3d at1120. Nor does Plaintiff claim to qualify for § 1915(g)'s exception for prisoners who, at the time of filing are "under imminent danger of serious physical injury." See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1049-50 (9th Cir. 2007). Instead, Plaintiff attacks the constitutionality of § 1915(g) on its face--arguing that the PLRA's three-strikes rule violates both the due process and equal protection clauses of the Fourteenth Amendment. (Pl.'s Opp'n at 3-10.)


First, the Court finds Plaintiff's constitutional challenge to § 1915(g) is expressly foreclosed by Ninth Circuit precedent. In Rodriguez, 169 F.3d at 1179-81, the Court specifically found that section 1915(g) does not violate a prisoner's right to access to the courts, due process or equal protection. See Id. Nor does it violate separation of powers principles or operate as an ex post facto law. Id. at 1181-82. In fact, every Circuit to have considered the validity of § 1915(g) on due process and equal protection grounds has concluded the same. See, e.g., White v. Colorado, 157 F.3d 1226 (10th Cir. 1998); Wilson v. Yaklich, 148 F.3d 596 (6th Cir. 1998); Rivera v. Allin, 144 F.3d 719 (11th Cir. 1998); Carson v. Johnson, 112 F.3d 818 (5th Cir. 1997).

Second, while Defendants are correct to note that "Plaintiff does not dispute the fact that he is a three-strike litigant," see Defs.' Reply at 1; Andrews, 398 F.3d at 1120, this Court must nevertheless review "the underlying court orders" identified by Defendants and "make an independent assessment of whether [these] prior cases were frivolous, malicious or failed to state a claim," before revoking Plaintiff's IFP privilege. Andrews, 398 F.3d at 1121.

The Court has confirmed that three of the four previous cases filed by Plaintiff and cited by Defendants qualify as "strikes" under § 1915(g). In Ruff v. Gehricke, E.D. Cal. Civil Case No. 96-05178-GEB-HCB, United States Magistrate Judge Holland G. Best issued Findings and Recommendations ("F&Rs") on March 5, 1996 pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Best granted Plaintiff's request to proceed IFP, but found Plaintiff's Complaint subject to dismissal as frivolous pursuant to 28 U.S.C. § 1915(d)*fn1 insofar as it "lack[ed] arguable substance in law and fact." (See Def.s' Ex. 10, citing Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).) Specifically, Judge Best noted that Plaintiff's Complaint, alleging unauthorized deprivation of Plaintiff's quarterly care packages by three California Correctional Institute officials, did "not constitute a violation of the procedural requirements of the Fourteenth Amendment," because California's Tort Claims Act provided him with a meaningful post-deprivation remedy. (Id., citing Hudson v. Palmer, 468 U.S. 517, 533 (1984); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994).) Therefore, Judge Best recommended the action be dismissed with prejudice pursuant to 28 U.S.C. § 1915(d). (Id.) On April 25, 1996, United States District Judge Garland E. Burrell, having received no objections in response from Plaintiff, adopted Judge Best's March 5, 1996 F&Rs and dismissed Plaintiff's action with prejudice. (See Defs.' Ex. 11.) Thus, this case qualifies as a "strike" under § 1915(g) because it shows that on one "prior occasion" while he was incarcerated, Plaintiff "brought an action ... in a court of the United States that was dismissed on the grounds that it [wa]s frivolous." 28 U.S.C. § 1915(g).

The Court also finds that Ruff v. Rosario, E.D. Cal. Civil Case No. 94-0956-DFL-GGH qualifies as a strike under § 1915(g). In this case, Magistrate Judge Gregory G. Hollows entered an Order on March 10, 1995 which granted Plaintiff leave to proceed IFP, but which also dismissed his Complaint. (See Defs.' Ex. 2 at 0003-0005.) Specifically, Judge Hollows found Plaintiff's pleading failed to comply with both FED.R.CIV.P. 8(a)(2) insofar as it "d[id] not contain a short and plain statement of the claim," and FED.R.CIV.P. 11 to the extent it made "broad, ultimate conclusions that paint[ed] all defendants with the same retaliation," yet did not reveal any "basis in fact to named a particular defendant as a participant in an act of retaliation." (Id. at 0005.) Judge Hollows further found that Plaintiff's "references to 'successors-in-office'" were "insufficient to place any individual on notice in his or her individual capacity that he or she [wa]s being sued, or what actions they took that violated federal law." (Id.) Thus, Judge Hollows concluded that Plaintiff's claims must be "dismissed as frivolous, with leave to amend." (Id. (emphasis added).) Plaintiff was specifically cautioned that his failure to file an amended complaint would result in dismissal of the action. (Id.) When Plaintiff failed to amend or otherwise respond, Judge Hollows entered findings and recommended that Plaintiff's action be dismissed on June 7, 1995. (Id. Ex. 4 at 0007-0008.)

On July 26, 1995, having received no objections, United States District Judge Davis F. Levi adopted Judge Hollows' June 7, 1995 F&R "in full" and dismissed the action "without prejudice." (Id. Ex. 5 at 0010-0011, citing E.D. Cal. Local Civil Rule 110 and FED.R.CIV.P. 41(b)). Thus, while Judge Hollows' final order of dismissal refers only to Plaintiff's failure to prosecute, which is not by itself within the ambit of § 1915(g), see Yellen v. Mueller, 61 Fed.Appx. 446, 2003 WL 1900728 (9th Cir. 2003) (unpub.); cf. Butler v. Dept. of Justice, 492 F.3d 440, 443-44 (D.C. Cir. 2007) (concluding that "a dismissal for failure to prosecute ... made without regard to the merits of the claim" is not a strike under § 1915(g) (emphasis added)), Plaintiff's Complaint in Ruff v. Rosario would have proceeded were it not for Magistrate Judge's Hollow's initial determination that Plaintiff's complaint, as submitted and unless amended, was "frivolous." (See Defs.' Ex. 2 at 0003-0005.) Therefore, because this action would have proceeded had it not been for Judge Hollows' initial dismissal for frivolousness, this Court finds that Ruff v. Rosario qualifies as Plaintiff's second "strike" under 28 U.S.C. § 1915(g). See Thompson v. DEA, 492 F.3d 428, 433 (D.C. Cir. 2007).*fn2

For similar reasons, Ruff v. Smith, E.D. Cal. Civil Case No. 95-05771-REC-DLB (see Defs.' Exs. 5-8), also qualifies as a "strike" under § 1915(g). On this "prior occasion," see 28 U.S.C. § 1915(g), Magistrate Judge Dennis L. Beck entered an Order, dated October 27, 1995, which granted Plaintiff leave to proceed IFP, but simultaneously dismissed his Complaint, filed pursuant to 42 U.S.C. § 1985 and 18 U.S.C. § 1964, "as frivolous in its present incarnation as a Civil RICO action." (Id. Ex. 6 at 0016 (emphasis added).) While Judge Beck granted Plaintiff leave to amend his pleading, Plaintiff filed no Amended Complaint or any other response to the Court's Order. Therefore, on December 13, 1995, Judge Beck entered Findings and Recommendations that the action "be dismissed without prejudice." (Id. Ex. 7 at 0018-0019.) On March 14, 1996, United States District Judge Robert E. Coyle, receiving no amended complaint or objections by Plaintiff to Judge Beck's F&R, adopted its findings and reasoning "in full" and ordered that Plaintiff's action be dismissed. (Id. Ex. 8 at 0021-0022.) Thus, because Plaintiff's underlying Complaint was specifically found to be "frivolous," and he failed to correct the deficiencies of pleading identified by the Magistrate Judge, this Court concurs that U.S. District Judge Coyle's final order of dismissal is necessarily premised on Plaintiff's frivolous complaint. Thus, Ruff v. Smith qualifies as Plaintiff's third "strike" under § 1915(g).

In addition, while it is not cited by Defendants, the Court has independently verified that Plaintiff has a fourth, and more recent "strike" against him. See Andrews, 398 F.3d at1120. In Ruff v. Duncan, E.D. Cal. Civil Case No. 04-05721-OWW-SMS, United States Magistrate Judge Sandra M. Snyder entered an Order on May 23, 2006 dismissing Plaintiff's Amended Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and § 1915A(b)(1) and (2). Magistrate Judge Snyder granted Plaintiff leave to amend, directed the Clerk to provide Plaintiff with a blank civil rights complaint form, and notified him that his failure to file an amended complaint which cured the deficiencies of pleading identified by the Court or to notify the Court in writing that he did not wish to pursue the action, but instead, wished to "voluntar[i]ly dismiss the case," would result in a recommendation that his complaint be dismissed "pursuant to Local Rule 11-110."*fn3 (See Ruff v. Duncan, E.D. Cal. Civil Case No. 04-05721-OWW-SMS (May 23, 2006 Order Dismissing Amended Complaint [Doc No. 9].) When Plaintiff failed to respond in any way to Judge Snyder's Order, she issued findings and recommended that Plaintiff's complaint be dismissed "pursuant to Local Rule 11-110, for plaintiff's failure to obey the court's order of May 23, 2006, and for failing to state a claim upon which relief can be granted." (Id. (July 31, 2006 F&R [Doc. No. 10] at 3 (emphasis added).) After Plaintiff filed no objections or other response to the F&R, United States District Judge Oliver W. Wanger entered an Order Adopting the F&R in full and dismissing the complaint "pursuant to Local Rule 11-110, for plaintiff's failure to obey the court's order of May 23, 2006, and for failing to state a claim upon which relief can be granted." (Id. (Oct. 3, 2006 Order [Doc No. 11] at 2.)

Thus, because Defendants have shown and the Court has confirmed that Plaintiff has, on three or more "prior occasions" while incarcerated, had civil actions or appeals dismissed as frivolous, malicious or for failure to state a claim, he is not entitled to proceed IFP in this action. See 28 U.S.C. § 1915(g); Andrews, 398 F.3d at 1119-1121; Rodriguez, 169 F.3d at 1180 ("[Section] 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.").*fn4


Accordingly, IT IS HEREBY ORDERED that:

1) Defendants' Motion for Order Requiring Plaintiff to Pay the $350 Civil Filing Fee required by 28 U.S.C. § 1914(a) [Doc. No. 12] is GRANTED.

2) Plaintiff's IFP status is REVOKED pursuant to 28 U.S.C. § 1915(g), and the Court's June 6, 2007 Order granting Plaintiff's Motion to Proceed IFP [Doc. No. 3] is VACATED to the extent it permitted Plaintiff permission to pay the civil filing fee pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) and (2).

IT IS FURTHER ORDERED that: 3) This action is DISMISSED for failure to pay the entire $350 civil filing in one lump sum as required by 28 U.S.C. § 1914(a). To re-open the case and proceed on the merits with his claims, Plaintiff must, within sixty (60) days from the date this Order is filed, submit the entire $350 civil filing fee the Clerk of Court. If Plaintiff fails to do so, this action shall remained DISMISSED and the docket shall remain closed without further Order of the Court.

4) The Clerk of the Court is directed to serve a copy of this Order on James Tilton, Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502, Sacramento, California 95814.

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