United States District Court, S.D. California
MICHAEL GREEN, aka KEVIN DEAN BREWER, CDCR #AC-5033, Plaintiff,
PATRICK COVELLO, et al., Defendants.
ORDER: 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS
AS BARRED BY 28 U.S.C. § 1915(G) [ECF NO. 4] AND (2)
DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY
FILING FEE REQUIRED BY 28 U.S.C. § 1914(A)
JOHN A. HOUSTON UNITED STATES DISTRICT JUDGE.
Michael Green also known as Keven Dean Brewer, currently
incarcerated at Richard J. Donovan Correctional Facility
(“RJD”), in San Diego, California, has filed a
civil rights Complaint pursuant to 42 U.S.C. § 1983.
See Compl., ECF No. 1. He 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 No. 4).
Motion to Proceed IFP
Standard of Review
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.”
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)). “When
… presented with multiple claims within a single
action, ” however, courts may “assess a PLRA
strike only when the case as a whole is dismissed for a
qualifying reason under the Act.” Hoffman v.
Pulido, 928 F.3d. 1147, 1152 (9th Cir. 2019) (citing
Washington v. L.A. Cty. Sheriff's Dep't, 833
F.3d 1048, 1057 (9th Cir. 2016)).
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.”).
Court has reviewed Plaintiff's Complaint and finds it
contains no “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)).
Plaintiff has failed to allege any facts sufficient to
plausibly meet § 1915(g)'s exception for imminent
danger. See Cervantes, 493 F.3d at 1055-56
(plaintiff must allege to face a real, proximate and/or
ongoing danger at the time of filing).
while Defendants typically carry the initial burden to
produce evidence demonstrating a prisoner is not entitled to
proceed IFP, Andrews, 398 F.3d at 1119, “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) and therefore counts as a
strike.” Id. at 1120. That is the case here.
may take judicial notice of its own records, see Molus v.
Swan, Civil Case No. 3:05-cv-00452-MMA-WMc, 2009 WL
160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
States v. Author Services, 804 F.2d 1520, 1523 (9th Cir.
1986)); Gerritsen v. Warner Bros. Entm't Inc.,
112 F.Supp.3d 1011, 1034 (C.D. Cal. 2015), and
“‘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