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Rodriguez v. Gore

United States District Court, S.D. California

July 3, 2019

PEDRO RODRIGUEZ, Booking #14745493, CDCR #BC-6583, Plaintiff,
v.
WILLIAM GORE, Sheriff; FEMALE SERGEANT, San Diego Central Jail; SENIOR DOCTOR, San Diego Central Jail, Defendants.

          ORDER DISMISSING CIVIL ACTION FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(A)

          HON. WILLIAM Q. HAYES JUDGE

         Plaintiff, Pedro Rodriguez, while temporarily held in custody at the San Diego Sheriff Department's George Bailey Detention Facility (“GBDF”), filed this civil rights action pursuant to 42 U.S.C. § 1983 on June 17, 2019.[1] (See Compl., ECF No. 1.) Plaintiff claims the San Diego County Sheriff, an unidentified sergeant, and an unidentified doctor violated his Eighth Amendment rights and interfered with his right to petition for redress on May 9, 2019 during a transfer from GBDF to the SDCJ. (Id. at 3-7.) He seeks declaratory relief and $75, 000 in punitive damages. (Id. at 9.)

         Plaintiff did not pay the civil filing fee required by 28 U.S.C. § 1914(a) at the time he filed his Complaint and has not filed a Motion to Proceed in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). However, on June 17, 2019, he filed a “Request for Judicial Notice, ” in which he asks the Court to liberally construe his Complaint to include an IFP Motion although “not in correct format.” (ECF No. 3.)

         I. Request for Judicial Notice re IFP

         A. Standard of Review

         “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 … additional hurdle[s].” Id.

         Specifically, 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 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). 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)).

         Once a 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.”).

         B. Discussion

         Plaintiff claims that on May 9, 2019, he was told he would be transferred from GBDF to the SDCJ. (See Compl., ECF No. 1 at 4.) When he learned he would be separated from “11 boxes of legal work, ” he objected, but an unidentified Sheriff's Department Sergeant nevertheless directed two deputies to cuff him for transport. (Id.) Plaintiff again objected, claimed he was disabled, needed a cane, and could not be cuffed behind his back, but the Sergeant replied, “You look fine to me.” (Id. at 5.) Plaintiff further contends San Diego County Sheriff William Gore, and an unidentified “senior doctor” at the SDCJ, violated his Eighth Amendment rights by “initiating a policy” that permits “untrained medical personnel, ” like the Sergeant, to ignore prisoners' medical needs. (Id. at 6-7.) However, his Complaint ...


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