United States District Court, S.D. California
ORDER: 1) GRANTING MOTION FOR LEAVE TO FILE EXCESS
PAGES [ECF NO. 3] 2) DENYING MOTION TO PROCEED IN FORMA
PAUPERIS AS BARRED BY 28 U.S.C. § 1915(G) [ECF NO. 2]
AND 3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE
TO PAY FILING FEE REQUIRED BY 28 U.S.C. §
LARRY ALAN BURNS UNITED STATES DISTRICT JUDGE.
WILLIAMS (“Plaintiff”), a prisoner incarcerated
at Richard J. Donovan Correctional Facility
(“RJD”) in San Diego, California, and proceeding
pro se, has filed this civil rights action pursuant to 42
U.S.C. § 1983. See Compl., ECF No. 1.
did not prepay the civil filing fee required to commence a
civil action at the time he filed his Complaint; instead, he
filed a Motion for Leave to proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a) (ECF
No. 2), together with a Motion requesting leave to file
excess pages. See ECF No. 3.
Motion for Leave to File Excess Pages
Plaintiff was incarcerated at RJD at the time of filing, S.D.
Cal. General Order 653 applies to his initial pleadings.
General Order 653, first issued by the Judges of this Court
on September 28, 2016, sets out procedures whereby the U.S.
District Court for the Southern District of California, in
conjunction with the California Department of Corrections and
Rehabilitation (“CDCR”), adopted a pilot program
at RJD requiring that prisoners incarcerated there who wish
to file § 1983 actions IFP submit their initial filings
electronically with the Clerk of the Court. Any initial
documents subject to General Order 653 that are received by
the Clerk but which do not comply with General Order 653, are
“accepted by the Clerk of Court for filing and
docketed, but may be stricken by Court order as authorized by
Local Civil Rule 83.1.” See S.D. Cal. Gen.
Order 653 ¶ 2.
Order 653 also provides, in pertinent part, that “the
Court will enforce Local Civil Rule 8.2(a), which prohibits
pro se complaints [filed] by prisoners from exceeding
twenty-two (22) pages, consisting of the [Court's] seven
(7) page form [§ 1983] complaint, plus no more than
fifteen additional pages.” Id. ¶ 4. RJD
prisoners subject to both General Order 653 and S.D. Cal.
CivLR 8.2(a) may also file a motion to increase this page
limit, but each must “demonstrate his or her need to
exceed the page limitation.” Id. ¶¶
litigants are generally bound to comply with the Court's
Local Rules and any order of the Court. See S.D.
Cal. CivLR 83.11.a (“Any person appearing propria
persona is bound by these rules of court and by the
Fed.R.Civ.P. or Fed. R. Crim. P. as appropriate.”);
see also S.D. Cal. CivLR 83.1.a (“Failure of
counsel or of any party to comply with these rules, with the
Federal Rules of Civil or Criminal Procedure, or with any
order of the court” may result in sanctions, including
dismissal); Briones v. Riviera Hotel & Casino,
116 F.3d 379, 381 (9th Cir. 1997) (“Pro se litigants
must follow the same rules of procedure that govern other
litigants.”) (quoting King v. Atiyeh, 814 F.2d
565, 567 (9th Cir. 1987), overruled on other grounds by
Lacey v. Maricopa County, 693 F.3d 896, 925 (9th Cir.
2012)); Smith v. Frank, 923 F.3d 139, 142 (9th Cir.
1991) (“For violations of the local rules, sanctions
may be imposed including, in appropriate cases, striking the
“district courts have broad discretion in interpreting
and applying their local rules, ” Simmons v. Navajo
Cty., 609 F.3d 1011, 1017 (9th Cir. 2010) (internal
quotation and citation omitted), and courts construe the
pleadings of pro se litigants in civil rights cases
liberally, affording them the benefit of doubt. See
Karim-Panahi v. L.A. Police Dept., 839 F.2d 621, 623
(9th Cir. 1988); Bretz v. Kelman, 773 F.2d 1026,
1027, n.1 (9th Cir. 1985) (en banc). “When a party
fails to comply with [a] Local Rule […], the court
can, in its discretion, refuse to consider the motion.”
Carmax Auto Superstores Cal. Ltd. Liab. Co. v.
Hernandez, 94 F.Supp.3d 1078, 1087 (C.D. Cal. 2015)
(internal citations omitted). “Failure to comply with
the Local Rules does not automatically require the denial of
a party's motion, however, particularly where the
non-moving party has suffered no apparent prejudice as a
result of the failure to comply.” Id.
(internal citations omitted); Mazal Grp., LLC v.
Espana, No. 217CV05856RSWLKS, 2017 WL 6001721, at *2
(C.D. Cal. Dec. 4, 2017).
Plaintiff seeks to be excused from General Order 653 and S.D.
Cal. CivLR 8.2(a)'s page limitations, because he claims
to have faced “imminent danger of serious physical
injury, ” at the time he filed it, and needs to attach
exhibits “so that the Court can see [he] is clearly
under imminent danger.” See ECF No. 3 at 1. As
noted above, RJD litigants subject to General Order 653 may
file a motion seeking relief from its requirements, so long
as they demonstrate good cause. See S.D. Cal. Gen.
Order 653 ¶¶ 2, 5, 6; see also Fed. R.
Civ. P. 5(d)(4) (“A clerk must not refuse to file a
paper solely because it is not in the form prescribed by
these rules or by a local rule or practice.”).
discussed below, Plaintiff seeks to proceed IFP in this case,
but his past litigation history may prevent him from doing so
in this case unless he plausibly alleges to be “under
imminent danger of serious physical injury” “at
the time [his] complaint was filed.” See 28
U.S.C. § 1915(g); Andrews v. Cervantes, 493
F.3d 1047, 1053 (9th Cir. 2007) (finding that §
1915(g)'s exception “applies if the danger existed
at the time the prisoner filed the complaint.”)
(hereafter “Cervantes”). Plaintiff's
Complaint exceeds General Order 653 and Local Rule
8.2(a)'s page limits by approximately 20 pages because he
has attached to it the declarations of several fellow inmates
who allegedly witnessed the events giving rise to his claims.
See Compl., ECF No. 1 at 17-28.
because Plaintiff contends these exhibits are necessary to
show “imminent danger, ” the Court finds good
cause to GRANT Plaintiff's Motion for Leave to File
Excess Pages (ECF No. 3) and declines to exercise its
discretion to strike his non-compliant pleading pursuant to
S.D. Cal. CivLR 83.1. See S.D. Cal. Gen. Order 653
¶¶ 2, 6.
Motion to Proceed IFP
persons, not just prisoners, may seek IFP status.”
Moore v. Maricopa County 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, __ U.S. __, 136
S.Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act
(“PLRA”) amended section 1915 to 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
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.
to § 1915(g), a prisoner with three strikes or more
cannot proceed IFP.” Id.; see also
Cervantes, 493 F.3d at 1052 (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.
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 ...