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Ullrich v. Doe

United States District Court, S.D. California

February 10, 2014

STEPHEN ULLRICH, Inmate #56989, Plaintiff,
v.
ADMINISTRATOR DOE, et al., Defendants.

ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF Doc. No. 2] AND 2) DISMISSING CIVIL ACTION FOR FAILING TO PAY CIVIL FILING FEES REQUIRED BY 28 U.S.C. § 1914(a)

ROGER T. BENITEZ, District Judge.

Stephen Ullrich ("Plaintiff"), a state prisoner proceeding pro se and currently incarcerated at the Idaho State Correctional Institution in Boise, Idaho, has filed a civil rights action pursuant to 42 U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.

Plaintiff's Complaint is difficult to decipher, but he appears to seek declaratory relief and damages against various county and state administrators, agencies, and courts based on alleged deprivations of his right to effective assistance of counsel, an opportunity to raise a diminished capacity defense, and to be provided reasonable accommodations under the ADA during the San Diego Superior Court proceedings which resulted in his 1997 criminal conviction. See Compl. at 1, 11-12, 21-25.

Plaintiff has not prepaid the $400 statutory and administrative civil filing fees required by 28 U.S.C. § 1914(a)[1]; instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). [ECF Doc. No. 2].

I. MOTION TO PROCEED IFP

"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa Cnty. Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). "Prisoners, " like Plaintiff, however, "face an additional hurdle." Id. In addition to requiring prisoners to "pay the full amount of a filing fee, " in installments as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP:

... if [a] 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) (hereafter "Andrews" ).

"Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id .; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter "Cervantes" ) (under the PLRA, "[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]"). 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). "[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date." Id. at 1311.

"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 failed to state a claim, " Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even if the district court styles such dismissal as a denial of the prisoner's application to file the action without prepayment of the full filing fee." O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP action in federal court unless he can show he is facing "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)'s exception for IFP complaints which "make[] a plausible allegation that the prisoner faced imminent danger of serious physical injury' at the time of filing.").

II. APPLICATION TO PLAINTIFF'S CASE

As an initial matter, the Court has carefully reviewed Plaintiff's pleading and has ascertained that it contains no "plausible allegation" to suggest he "faced imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)).

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.'" Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). Thus, this Court takes judicial notice that Plaintiff, Stephen Ullrich, identified as Idaho State Department of Corrections Inmate #56989, has had at least seven prior prisoner civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted.

They are:

1) Ullrich v. State of Idaho, et al., Civil Case No. 1:05-cv-00340-LMB (D. Idaho Dec. 7, 2005) (Order dismissing complaint for failing to state a claim per 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 7]) (strike one);

2) Ullrich v. Barnhart, Civil Case No. 1:06-cv-00080-EJL (D. Idaho May 1, 2006) (Initial Review Order denying IFP and dismissing complaint for failure to state a claim per 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 10]) (strike two);

3) Ullrich v. Canyon Cnty. Comm'rs, et al., Civil Case No. 1:06-cv-00095-EJL (D. Idaho May 30, 2006) (Order dismissing complaint for failing to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(2) [ECF Doc. No. 6]) (strike three);

4) Ullrich v. Canyon Cnty., et al., Civil Case No. 1:06-cv-00320-EJL (D. Idaho Oct. 16, 2006) (Initial Review Order dismissing case as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 10]) (strike four);

5) Ullrich v. Prior, Civil Case No. 1:06-cv-00500-EJL (D. Idaho Jan. 31, 2007) (Initial Review Order dismissing complaint for failure to state claims upon which relief can be granted pursuant to 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 13]) (strike five);

6) Ullrich v. State of Idaho, et al., Civil Case No. 1:07-cv-00440-BLW (D. Idaho Apr. 28, 2008) (Initial Review Order dismissing complaint for failure to state cognizable claims pursuant to 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 8]) (strike six); and,

7) Ullrich v. State of Idaho, et al., Civil Case No. 1:08-cv-00076-BLW (D. Idaho June 16, 2008) (Initial Review Order dismissing complaint as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B) [ECF Doc. No. 7]) (noting that Plaintiff had "filed at least twenty-six (26) civil lawsuits in the District of Idaho involving the same allegations arising out of his criminal conviction and alleged civil rights violations, " his "failure to prevail in any of them, " and previous unheeded warnings "to stop filing complaints involving previously litigated claims, " resulting in the issuance of a Pre-Filing Review Order in the District of Idaho) (strike seven).

Accordingly, because Plaintiff has, while incarcerated, accumulated more than three "strikes" pursuant to § 1915(g), and he fails to make a "plausible allegation" that he faced imminent danger of serious physical injury at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 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"); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) ("[C]ourt permission to proceed IFP is itself a matter of privilege and not right.").[2]

III. CONCLUSION AND ORDER

For the reasons set forth above, the Court hereby:

1) DENIES Plaintiff's Motion to Proceed IFP [ECF Doc. No. 2] as barred by 28 U.S.C. § 1915(g);

2) DISMISSES this action without prejudice for failure to pay the full statutory and administrative $400 civil filing fees required by 28 U.S.C. § 1914(a), and

3) CERTIFIES that an IFP appeal from this Order would 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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