United States District Court, S.D. California
ORDER GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IFP STATUS UNDER 28 U.S.C. § 1915(g) [ECF No. 149]
BARRY TED MOSKOWITZ, Chief District Judge.
I. PROCEDURAL HISTORY
This matter, which has been pending for over five years and is nearing a trial date, has a lengthy procedural history. For the purposes of the motion currently before the Court, only the relevant procedural history will be addressed. Plaintiff initially filed this action on July 17, 2008. (ECF No. 1.) The Court granted Plaintiff's Motion to Proceed In Forma Pauperis and directed the United States Marshal's Service to effect service of the Complaint on September 19, 2008. (ECF No. 3.) Defendants filed their first Motion to Dismiss approximately five years ago on November 26, 2008. (ECF No. 14.) There have been numerous other motions, including Defendants' Motion for Summary Judgment which was partially denied by this Court on March 27, 2012, approximately two years ago. (ECF No. 125.)
Pro Bono Counsel for Plaintiff was recently appointed on January 7, 2014. On January 29, 2014, Defendants filed a "Motion to Revoke Plaintiff's IFP Status" which is the matter currently pending before this Court. (ECF No. 149.) Plaintiff has filed an Opposition, to which Defendants filed a Reply. (ECF Nos. 155, 156.) On April 16, 2014, the Court held a hearing at which both parties were present.
II. DEFENDANTS' MOTION
A. Three strike provision
In this motion, Defendants seek revocation of Plaintiff's IFP status and dismissal of this action for failing to pay the initial civil filing fee. ( See Defs.' Memo of Ps & As [ECF No. 20-1] at 1-2.) Defendants also seek judicial notice of previous civil filings by Plaintiff. ( See Defs. Req. for Judicial Notice (ECF No. 20-2). 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). Therefore, the Court grants Defendants' request for judicial notice.
Defendants argue that Plaintiff is not entitled to IFP status in this matter based on his previous litigation history. See 28 U.S.C. § 1915(g). The Prison Litigation Reform Act provides that a prisoner may be precluded 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).
Defendants allege that Plaintiff has filed, at least, five actions prior to the filing of this action in 2008 which constitute "strikes" for 1915(g) purposes. They are as follows:
1. Buchanan v. Chavez, N.D. Cal. Civil Case No. 4:99-cv-3991 (Order dismissing action pursuant to "three strikes" provision of 28 U.S.C. § 1915(g) dated Nov. 3, 1999);
2. Buchanan v. Perez, N.D. Cal. Civil Case No. 4:99-cv-3990 (Order dismissing action dated Nov. 3, 1999);
3. Buchanan v. LaMarque, N.D. Cal Civil Case No. 4:99-cv-3911 (Order dismissing action dated Oct. 28, 1999); and Buchanan v. LaMarque, N.D. Cal. Civil Case No. 4:99-cv-3946 CW ...