Turner v. George Bailey Detention Facility

          ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF No.2] AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.c. § 1914(a)

          ROGER T. BENITEZ, District Judge.

         Plaintiff David B. Turner, Jr., currently incarcerated at George Bailey Detention Facility ("GBDF") in San Diego, California, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (ECF No.1.)

         Plaintiff claims GBDF, the County of San Diego Sheriff's Department, the San Diego County Jail, the State of California, and an unidentified San Diego County Sheriff's Deputy violated his Eighth and Fourteenth Amendment rights on December 13, 2015, January 12, 2016, and January 14, 2016, by subjecting him to "overcrowding, " applying handcuffs too tightly, and by subjecting him to "sexual harassment and intimidation" which caused him to "flashback [to] 12/3/13." (ECF No.1 at 2-5.^[1] Plaintiff seeks injunctive relief preventing the County "from continuing to deny" his rights, as well as $17 million in general and punitive damages for his pain and suffering. ( Id. at 7.)

         Plaintiff has not prepaid the full civil filing fee required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma Pauperis ("IFP"). (ECF No.2.)

         I.

         MOTION TO PROCEED IFP

         "[A] federal litigant who is too poor to pay court fees may proceed in forma pauperis. This means that the litigant may commence a civil action without prepaying fees or paying certain expenses." Coleman v. Tollefoon, 135 S.Ct. 1759, 1761 (2015). "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 "monthly installments" as provided by 28 U.S.C. § 1915(b)(2), Bruce v. Samuels, 136 S.Ct. 627, 629 (2016), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP:

[I]f [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).

         "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 fail[ed] to state a claim." Id. at 1116 n.1 (internal quotations omitted). 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." 28 U.S.C. § 1915(g). The objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner litigation in federal court." Tierney v. Kupers, 128 FJd 1310, 1312 (9th Cir. 1997).

         II.

         APPLICATION TO PLAINTIFF

         As an initial matter, the Court has carefully reviewed Plaintiff's Complaint and has ascertained that it does not contain "plausible allegations" which suggest he "faced imminent danger of serious physical injury' at the time of filing." Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007) [hereinafter Cervantes ] (quoting 28 U.S.C. § 1915(g)). Instead, Plaintiff complains generally about overcrowding and having been subject to verbal sexual innuendo and harassment by unidentified GBDF officials during a strip search in December 2015 and again during a meal in January 2016. (ECF No.1 at 3-5.) Nothing in his Complaint plausibly suggests Plaintiff faced any danger of imminent serious physical injury when he filed his Complaint on March 10, 2016. See Cervantes, 493 F.3d at 1053 ("[T]he availability of [§ 1915(g)'s imminent danger] exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time.").

         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 Benne ...