United States District Court, S.D. California
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 FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(a)
CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Robert Hatcher, while in custody at the San Diego Central
Jail (“SDCJ”), filed civil rights Complaint
pursuant to 42 U.S.C. § 1983 on May 17, 2019.
(See “Compl., ” ECF No. 1.) While not
altogether clear, it appears he seeks to sue the SDCJ
“Medical Staff, ” two doctors, and a nurse for
discriminating against him as a Native American.
(Id. at 1-2.) He also appears to seek the assistance
or appointment of an investigator, legal runner, paralegal,
or co-counsel, asks the Clerk of Court to “subpoena all
defendants” for purposes of discovery, and requests
that conferences and hearings be set to ensure his due
process and “universal human rights.”
(Id. at 4-5.)
did not pay the civil filing fee required by 28 U.S.C. §
1914(a) at the time he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a). (ECF No. 2).
Motion to Proceed IFP
Standard of Review
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.”
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), the Prison Litigation
Reform Act (“PLRA”) amended section 1915 to
preclude the privilege to proceed IFP in cases where the
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 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).
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). When courts “review 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.'” El-Shaddai v. Zamora, 833 F.3d
1036, 1042 (9th Cir. 2016) (quoting Blakely v.
Wards, 738 F.3d 607, 615 (4th Cir. 2013)).
prisoner has accumulated three strikes, section 1915(g)
prohibits his pursuit of any subsequent IFP civil action or
appeal in federal court unless he faces “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”).
Complaint 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 described above,
Plaintiff summarily claims two SDCJ doctors and a nurse have
discriminated against him based on his ethnicity.
(See Compl. at 1-2.)
while Defendants typically carry the initial burden to
produce evidence demonstrating 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)