United States District Court, S.D. California
August 20, 2014
SEAVON PIERCE, CDCR #F-13921, et al., Plaintiffs,
PRESIDENT BARACK OBAMA, et al., Defendants.
ORDER:1) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILING TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) AND 2) DENYING MOTION TO CERTIFY CLASS AND CONSOLIDATE CASES AS MOOT [Doc. No. 3]
ROGER T. BENITEZ, District Judge.
Seavon Pierce ("Plaintiff"), a prisoner currently incarcerated at California State Prison in Lancaster, California ("LAC"), has filed a civil complaint ("Compl."), purportedly under the "False Claims Act, " in which he seeks this Court's "intervention" in another civil action he filed in the Eastern District of California. See Compl. (Docket No. 1) at 1, 6-8.
Plaintiff has also filed a request for class certification pursuant to Federal Rule of Civil Procedure 23, on behalf of himself and "all inmates defined as U.S. prisoners under the A.E.D.P.A., " which is coupled with a request to consolidate this case with his Eastern District case. See Pl.'s Mot. (Doc. No. 3) at 1, 2, 4.
I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS
All parties instituting any civil action, suit or proceeding in a district court of the United States, other than a writ of habeas corpus, must pay a filing fee of $400. See 28 U.S.C. § 1914(a). An action may proceed despite a party's failure to pay only if the party is granted leave to proceed in forma pauperis ("IFP") pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999).
Plaintiff has not prepaid the $400 in filing and administrative fees required to commence this action, nor has he submitted a Motion to Proceed IFP. Therefore, his case is subject to immediate dismissal pursuant to 28 U.S.C. § 1914(a). While the Court would ordinarily grant him leave to file an IFP motion pursuant 28 U.S.C. § 1915(a), it finds, for the reasons set out below, that doing so would be futile since Plaintiff is no longer entitled to that privilege.
II. 28 U.S.C. § 1915(g)'S "THREE-STRIKES" BAR
"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, " 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 in cases where 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, "prisoners 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 1055 (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.").
III. APPLICATION TO PLAINTIFF
As an initial matter, the Court has carefully reviewed Plaintiff's pleading and has ascertained that it contains 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)). Instead, Plaintiff appears to seek this Court's intervention in another civil case he filed in the Eastern District of California, which is being heard by United States Magistrate Judge Jennifer L. Thurston in Civil Case No. 1:10-cv-00285-JLT. See Compl. at 1, 2, 4. While not altogether clear, it appears Plaintiff seeks to challenge a "judgment/settlement" entered by Judge Thurston in that case which he claims effects his "contemplated" and "still pending litigation." Id. at 7.
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, Seavon Pearce, CDCR Inmate #F-13921, has had at least four prior civil actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. They include:
(1) the Eastern District Case he seeks to "consolidate" with this civil action, Pierce v. Gonzales, et al., Civil Case No. 1:10-cv-00285-JLT (Dec. 3, 2012 Order Dismissing Action for failing to state a claim) (Docket No. 27), and (Jan. 30, 2013 Order Revoking In Forma Pauperis Status on Appeal) (Docket No. 38) (strike one);
(2) Pierce v. McEwan, et al., Central Dist. Cal. Civil Case No. 2:12-cv-08240-UA-CW (Oct. 11, 2012 and Nov. 9, 2012) (Orders denying leave to file action without prepayment of full filing fee on grounds that action was frivolous, malicious, or failed to state a claim) (Docket Nos. 2, 8) (strike two);
(3) Pierce v. California State, et al., Central District Cal. Civil Case No. 2:12-cv-09211-UA-CW (Nov. 20, 2012 Order denying leave to file action without prepayment of full filing fee on grounds that action was frivolous, malicious, or failed to state a claim) (Docket No. 5) (strike three); and
(4) Pierce v. Warden of Lancaster, Central Dist. Cal. Civil Case No. 2:13-cv-01939-UA-CW (March 28, 2013 Order denying leave to file action without prepayment of full filing fee on grounds that action was frivolous, malicious, or failed to state a claim) (Docket No. 2) (strike four).
Accordingly, because Plaintiff has, while incarcerated, accumulated more than three "strikes" as defined by § 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 v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (noting 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.").
IV. PLAINTIFF'S MOTION TO CERTIFY CLASS AND CONSOLIDATE CASES
Plaintiff has also moved to certify this action on behalf of "all inmates defined as U.S. prisoners under A.E.D.P.A." and seeks declaratory relief pursuant to Federal Rule of Civil Procedure 23(b)(2). See Pl.'s Mot. (Doc. No. 3) at 1.
Before the court considers the merits of a claim, however, it must determine whether an actual case or controversy exists under Article III of the Constitution. Jackson v. Cal. Dep't of Mental Health, 399 F.3d 1069, 1071 (9th Cir. 2005). Because Plaintiff has been denied leave to proceed IFP in this matter, his Motion to Certify Class and to Consolidate Cases (Doc. No. 3) is DENIED as moot. See Feldman v. Bomar, 518 F.3d 637, 642 (9th Cir. 2008) ("The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted.") (internal quotation marks and citation omitted).
V. CONCLUSION AND ORDER
For the reasons set forth above, the Court hereby:
(1) DISMISSES this action sua sponte without prejudice for failing to prepay the $400 civil filing fee required by 28 U.S.C. § 1914(a);
(2) DENIES Plaintiff's Motion to Certify Class and Consolidate Cases (Docket No. 3) as moot; and,
(3) CERTIFIES that an IFP appeal from this Order would also be frivolous and therefore, not 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).
The Clerk shall close the file.
IT IS SO ORDERED.