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Orozco v. Houston

United States District Court, S.D. California

January 15, 2020

RAMIRO PLASCENCIA OROZCO, aka Alberto Jose Del Muro, aka Alberto Jose Muro-Guerrero, BOP #40467-198, Plaintiff,
v.
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)

          HON. MICHAEL M. ANELLO United States District Judge

         Ramiro 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.

         I. Motion to Proceed 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 Haywood, however, “face an additional hurdle.” Id.

         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), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP in cases where the 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).

         “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 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.”).

         B. Discussion

         Plaintiff's 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.[1] 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)).

         Defendants 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, [2] 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, ...


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