United States District Court, S.D. California
RAMIRO PLASCENCIA OROZCO, aka Alberto Jose Del Muro, aka Alberto Jose Muro-Guerrero, BOP #40467-198, Plaintiff,
JOHN A. HOUSTON, Judge; Hon. ALANA W. ROBINSON, Sr.; LAURA E. DUFFY, U.S. Attorney Chief; MARIETTA IRENE GECKOS, U.S. Attorney Assistance; FEDERAL DEFENDERS, CHIEF, U.S. Gov. Court, Defendants.
ORDER DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS
BARRED BY 28 U.S.C. § 1915(G); [DOC. NO. 2] DISMISSING
CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE
REQUIRED BY 28 U.S.C. § 1914(A)
MICHAEL M. ANELLO United States District Judge
Plascencia Orozco, also known as Alberto Jose Del Muro and
Alberto Jose Muro-Gurrero (“Plaintiff”), a
prisoner incarcerated at the Federal Medical Center in Fort
Worth, Texas, and proceeding pro se, has filed this civil
rights Complaint (“Compl.”) pursuant to 42 U.S.C.
§ 1983. See Compl., Doc. No. 1. Plaintiff did
not prepay the civil filing fee required to commence a civil
action at the time he filed this action; instead, he has
filed a Motion for Leave to proceed In Forma Pauperis
(“IFP”) pursuant to 28 U.S.C. § 1915(a).
See Doc. No. 2.
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 Haywood,
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 she 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 allege any basis for § 1983 liability
at all, let alone assert “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 best the Court can decipher,
Plaintiff seeks to federal judges, prosecutors, and defenders
for having falsely imprisoned him as the result of
“fraud” and “discrimination” during
the course of at least three separate federal criminal
proceedings: 94-cr-00296-B, 05-cr-01714-JM, and
08-cr-0139-BEN. See Compl. at 2, 4‒5. But
claims of false imprisonment are “not the sort of
serious physical injury contemplated by the in forma pauperis
statute.” Langston v. White, No. 2:19-CV-1168
DB P, 2019 WL 3326181, at *2 (E.D. Cal. July 3, 2019),
report and recommendation adopted, No.
2:19-CV-1168-KJM-DBP, 2019 WL 3318529 (E.D. Cal. July 24,
2019) (citing Smith v. Baldwin, No. 18-cv-1503-NJR,
2018 WL 3993629, at *2 (S.D. Ill. Aug. 21, 2018);
Berryhill v. Oklahoma, No. CIV-13-1370-W, 2014 WL
679111, at *2 (W.D. Okla. Jan. 30, 2014); Weidow v.
Anderson, No. 3:07-cv-510/LAC/MD, 2008 WL 168888, at *2
(N.D. Fla. Jan. 16, 2008)).
typically carry the initial burden to produce evidence
demonstrating a prisoner is not entitled to proceed IFP,
Andrews, 398 F.3d at 1119, but “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. Therefore, this Court
takes judicial notice of its own records,  together with the
docket proceedings of other federal courts available on
PACER, and finds that Plaintiff Ramiro Plascencia Orozco, aka
Alberto Jose Del Muro, aka Alberto Jose Muro-Guerrero, and
identified as BOP #40467-198, while incarcerated, ...