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 DOC. NO.
5] (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE
TO PAY FILING FEE REQUIRED BY 28 U.S.C. §
Cathy Ann Bencivengo, United States District Judge.
Melvin Joseph Simmons, a state inmate currently housed at
High Desert State Prison located in Susanville, California
has filed a civil rights Complaint (“Compl.”)
pursuant to 42 U.S.C. § 1983. (ECF Doc. No. 1.)
Plaintiff has not prepaid the full civil filing fee required
by 28 U.S.C. § 1914(a); instead, he has filed a Motion
to Proceed In Forma Pauperis (“IFP”)
(ECF Doc. No. 5).
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 “increments” as provided by 28
U.S.C. § 1915(a)(3)(b), 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.
2005) (hereafter “Andrews”).
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.
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). Once a prisoner has accumulated three
strikes, he is prohibited by section 1915(g) from pursuing
any other IFP action in federal court unless he can show 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.”).
Application to Plaintiff
initial matter, the Court has carefully reviewed
Plaintiff’s Complaint and has ascertained that it does
not contain “plausible allegations” which 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.
“‘may take notice of proceedings in other courts,
both within and without the federal judicial system, if those
proceedings have a direct relation to matters at
issue.’” Bias v. Moynihan, 508 F.3d
1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic,
Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see
also United States ex rel. Robinson Rancheria Citizens
Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.
this Court takes judicial notice that Plaintiff, while
incarcerated, has brought at least five prior civil actions
which have been dismissed on the grounds that they were
frivolous, malicious, or failed to state a claim upon which
relief may be granted. See 28 U.S.C. § 1915(g).
1) Simmons v. Lamarque, et al., Civil Case No.
03-cv-04509-JW-PR (N.D. Cal. July 19, 2007) (Order Dismissing
Complaint for ...