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Murillo v. McBride

United States District Court, S.D. California

June 23, 2014

JORGE ENRIQUE MURILLO, CDCR #T-16641, Plaintiff,
v.
D.K. McBRIDE; MS. RONQUILLO; N. CATALUNA;
v.
KEMP; BLUEFORD; C. SALANG; LT. D. ARGUILEZ; E. GARCIA; MS. CLARK; R. COBB, Defendants.

ORDER GRANTING DEFENDANTS' MOTION FOR ORDER REQUIRING PLAINTIFF TO PAY FULL CIVIL FILING FEE AND REVOKING ORDER GRANTING PLAINTIFF LEAVE TO PROCEED IN FORMA PAUPERIS PURSUANT TO 28 U.S.C. § 1915(g) [ECF No. 50]

CYNTHIA BASHANT, District Judge.

I.

PROCEDURAL HISTORY

On July 11, 2011, while incarcerated at Corcoran State Prison located in Corcoran, California, Plaintiff, proceeding pro se, filed this civil rights action pursuant to 42 U.S.C. § 1983 regarding conditions of his confinement when he was incarcerated at the Richard J. Donovan Correctional Facility in 2010. ( See Compl., ECF No. 1, at 1.) In addition, Plaintiff filed two Motions to Proceed In Forma Pauperis ("IFP"). (ECF Nos. 2, 6.)

On October 28, 2011, the Court granted Plaintiff's Motion to Proceed IFP and directed service of the Plaintiff's Complaint on the named Defendants. (ECF No. 9.) Defendants have now filed a "Motion for Order Revoking Plaintiff's In Forma Pauperis Status, Declaring Plaintiff a Three-Strikes Litigant, and Dismissing the Complaint." (ECF No. 50.) Plaintiff has filed an Opposition to which Defendants have filed a Reply. (ECF Nos. 55, 58.)

II. DEFENDANTS' MOTION

In this Motion, Defendants seek revocation of Plaintiff's IFP status, as well as dismissal of this action for failing to pay the initial civil filing fee. ( See Defs.' Memo of Ps & As [ECF No. 50-1] at 5.) Defendants also request judicial notice of previous civil filings by Plaintiff. ( See Defs. Req. for Judicial Notice [ECF No. 50-3] at 1.) 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)). In this case, the Court finds it is appropriate to take judicial notice of the documents attached to Defendants' 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). In addition, Defendants argue that Plaintiff's "complaint did not allege that he was under imminent danger of serious physical injury" at the time he filed this action. (Defs.' Memo of Ps & As at 5; citing Andrews v. Cervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (hereafter " Cervantes ") (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.")).

A. Standard

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 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 ...


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