Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Schmitt v. U.S. Marshal Service

United States District Court, S.D. California

November 20, 2017

MICHAEL SCHMITT, CDCR #BB-8941, Plaintiff,
v.
U.S. MARSHAL SERVICE; AGENT WALKER, Fugitive Task Force, Defendants.

         ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(G) [ECF NO. 3] AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(A) AND FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915A(B)(1)

          Hon. Janis L. Sammartino United States District Judge.

         Plaintiff Michael Schmitt, currently incarcerated at the California Institution for Men (“CIM”) in Chino, California, [1] and proceeding pro se, has filed a civil action using a Standard Form 95 “Claim for Damage, Injury, or Death, ” pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-80 (ECF No. 1). In this two-page document, Plaintiff claims the U.S. Marshal Service and a Fugitive Task Force agent named Walker caused $750 in property damage when they broke a door and forced entry into his home at 1425 14th Street in San Diego, California, while arresting him on November 2, 2016, based on a “County Probations Violations Warrant.” (Id. at 1.)

         Plaintiff did not prepay the civil filing fee when he filed suit, nor did he file a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Therefore, on August 1, 2017, the Court dismissed the case pursuant to 28 U.S.C. § 1914(a), but granted Plaintiff forty-five days leave in which to do either, (ECF No. 2). On September 1, 2017, he filed a Motion to Proceed IFP, (ECF No. 3).

         I. Motion to Proceed IFP

         “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” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), Bruce v. Samuels, 136 S.Ct. 627, 629 (2016), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to altogether 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). “[S]ection 1915(g)'s cap on prior dismissed claims applies to claims dismissed both before and after the statute's effective date.” Id. at 1311.

         “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); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (noting that when court “review[s] a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim'”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)).

         Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from pursuing any other IFP civil action or appeal in federal court unless he alleges 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”).

         II. Discussion

         As an initial matter, the Court has carefully reviewed Plaintiff's pleading and has ascertained that it does not contain any “plausible allegations” to suggest he “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, as noted above, Plaintiff is currently incarcerated at CIM, and he seeks money damages pursuant to the FTCA based on alleged property damage done to his home in San Diego during his arrest approximately one year ago on November 2, 2016. (ECF No. 1, at 1.)

         While defendants typically carry the burden to show that a prisoner is not entitled to proceed IFP, “in some instances, the district court docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.