United States District Court, S.D. California
DAVID B. TURNER, Jr., Booking No. 15780644, Plaintiff,
GEORGE BAILEY DETENTION FACILITY, et al., Defendants.
ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. Â§ 1915(g) [ECF No.2] AND (2)
DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY
FILING FEE REQUIRED BY 28 U.S.c. Â§ 1914(a)
T. BENITEZ, District Judge.
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. Â§ 1983. (ECF No.1.)
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. 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.)
has not prepaid the full civil filing fee required by 28
U.S.C. Â§ 1914(a); instead, he has filed a Motion to Proceed
In Forma Pauperis ("IFP"). (ECF No.2.)
TO PROCEED IFP
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. Â§ 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. Â§ 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).
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. Â§ 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).
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. Â§
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 [Â§ 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
"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 ...