United States District Court, S.D. California
CHRISTOPHER CARREA, Jr. CDCR #P-77287, Plaintiff,
SAN DIEGO COUNTY, et al., Defendants.
ORDER: (1) DENYING PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) (ECF Doc. No. 3) (2) DENYING PLAINTIFF'S MOTION FOR EXTENSION OF TIME AS MOOT (ECF Doc. No. 2) AND (2) DISMISSING CIVIL ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a)
GONZALO P. CURIEL, District Judge.
Christopher Carrea, Jr. ("Plaintiff"), who is currently incarcerated at California Rehabilitation Center ("CRC") in Norco, California, and proceeding pro se, has filed a civil rights complaint pursuant to 42 U.S.C. § 1983.
Plaintiff seeks damages and injunctive relief against various San Diego County officials, including the County's Chief Administrative Officer, Public Defender, Sheriff, and the Office of Assigned Counsel, as well as several individual public defenders and sheriff's deputies, for failing to provide him with adequate legal support or law library materials and interfering with his mail while he was detained at the San Diego County Jail and proceeding in propria persona during state court criminal proceedings. See Compl. at 3-4, 9, 11, 13-17. Plaintiff seeks general and punitive damages as well as injunctive relief. Id. at 21.
Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a); instead, he filed a Motion for Extension of Time in which to submit a Motion to Proceed In Forma Pauperis ("IFP") (ECF Doc. No. 2). Plaintiff has since filed his Motion to Proceed IFP however, together with the trust account statements required by 28 U.S.C. § 1915(a)(2) (ECF Doc. No. 3).
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. See 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 [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).
"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.").
Application of 28 U.S.C. § 1915(g)
As an initial matter, the Court has carefully reviewed Plaintiff's Complaint and has ascertained that there is no "plausible allegation" to suggest Plaintiff "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)). As noted above, Plaintiff alleges Defendants failed to provide him with sufficient "ancillary" legal support services while he was in County custody and representing himself in San Diego Superior Court criminal proceedings. See Compl. at 3-4, 9, 11, 13-17. Nothing in Plaintiff's Complaint suggests he faced any "ongoing danger" of serious physical injury sufficient to "meet the imminence prong of the three-strikes exception" at the time he filed his Complaint. Cervantes, 493 F.3d at 1057. Therefore, Plaintiff may be barred from proceeding IFP in this action if he has on three prior occasions had civil actions or appeals dismissed as frivolous, malicious or for failing to state a claim. See 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. ...