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Williams v. Ortega

United States District Court, S.D. California

May 25, 2018

LANCE WILLIAMS, CDCR #AG-2394, Plaintiff,
O. ORTEGA, et al., Defendants.



         LANCE 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.

         Plaintiff 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.

         I. Motion for Leave to File Excess Pages

         Because 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.

         General 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. ¶¶ 6, 7.

         Pro se 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 offending pleading.”).

         However, “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).

         Here, 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.”).

         As 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.

         Thus, 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.

         II. Motion to Proceed IFP

         “All 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 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).

         “Pursuant 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.

         “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 ...

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