“[C]ourt permission to proceed IFP is 20 itself a matter of privilege and not right.”
How later courts described this case
- “[C]ourt permission to proceed IFP is 20 itself a matter of privilege and not right.”
Written by the judges who cited it.
The opinion
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7 UNITED STATES DISTRICT COURT
8 SOUTHERN DISTRICT OF CALIFORNIA
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10 JOSHUA DAVIS BLAND, Case No.: 3:20-CV-0964 JLS (LL)
CDCR #P-29302,
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ORDER: (1) DENYING MOTION TO
Plaintiff,
12 PROCEED IN FORMA PAUPERIS
vs. AS BARRED BY 28 U.S.C. § 1915(g);
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AND (2) DISMISSING CIVIL
14 ACTION WITHOUT PREJUDICE
PEOPLE OF THE STATE OF FOR FAILURE TO PAY FILING
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CALIFORNIA; SUPERIOR COURT OF FEE REQUIRED BY 28 U.S.C.
16 CALIFORNIA; WILLIAM WOLFE; § 1914(a)
BRUCE SILVA; SAN DIEGO COUNTY
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DISTRICT ATTORNEY; ESCONDIDO
18 POLICE OFFICER,
19 Defendants.
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21 Plaintiff Joshua Davis Bland, currently incarcerated at the California State Prison,
22 Corcoran, located in Corcoran, California, has filed a civil rights Complaint pursuant to 42
23 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff also filed a Motion to Proceed In Forma
24 Pauperis (“IFP”) (See ECF No. 2).
25 I. Motion to Proceed IFP
26 A. Legal Standard
27 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty.
28 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face
1 an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a
2 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C.
3 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to
4 preclude the privilege to proceed IFP in cases where the prisoner:
5 has, on 3 or more prior occasions, while incarcerated or detained
in any facility, brought an action or appeal in a court of the
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United States that was dismissed on the grounds that it is
7 frivolous, malicious, or fails to state a claim upon which relief
can be granted, unless the prisoner is under imminent danger of
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serious physical injury.
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28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
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provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to
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§ 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews
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v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the
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PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred
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from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further
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“the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney
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v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
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“Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which
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were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”
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Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court
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styles such dismissal as a denial of the prisoner’s application to file the action without
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prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
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When courts “review a dismissal to determine whether it counts as a strike, the style of the
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dismissal or the procedural posture is immaterial. Instead, the central question is whether
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the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-
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Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738
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F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single
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action,” however, courts may “assess a PLRA strike only when the case as a whole is
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1 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152
2 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th
3 Cir. 2016)).
4 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit
5 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent
6 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at
7 1051–52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible
8 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time
9 of filing.”).
10 B. Discussion
11 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible
12 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time
13 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while
14 Defendants typically carry the initial burden to produce evidence demonstrating a prisoner
15 is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district
16 court docket may be sufficient to show that a prior dismissal satisfies at least one on the
17 criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is the case
18 here.
19 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-
20 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States
21 v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t
22 Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings
23 in other courts, both within and without the federal judicial system, if those proceedings
24 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th
25 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
26 Based on a review of its own docket and other court proceedings available on
27 PACER, the Court finds that Plaintiff Joshua Davis Bland, identified as CDCR Inmate
28 #P-29302, while incarcerated, has had three prior civil actions dismissed on the grounds
1 that they were frivolous, malicious, or failed to state a claim upon which relief may be
2 granted. They are:
3 (1) Bland v. Clark, et al., Civil Case No. 1:19-cv-00197-DAD-BAM (E.D.
Cal. April 17, 2019) (Order adopting Findings and Recommendations to
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dismiss case for failing to state a claim) (strike one);
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(2) Bland v. Cal. Dep’t of Corrections and Rehabilitation, et al., Civil Case
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No. 1:18-cv-01357-LJO-EPG (E.D. Cal. May 2, 2019) (Order adopting
7 Findings and Recommendations to dismiss case with prejudice for failing to
state a claim) (strike two);
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9 (3) Bland v. Jerry Brown, et al., Civil Case No. 1:18-cv-01358-AWI-JDP
(E.D. Cal. July 11, 2019) (Order adopting Findings and Recommendations to
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dismiss case with prejudice for failing to state a claim) (strike three).
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12 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three
13 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced
14 imminent danger of serious physical injury at the time he filed his Complaint, he is not
15 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055;
16 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all
17 prisoners from accessing the courts; it only precludes prisoners with a history of abusing
18 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin
19 v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is
20 itself a matter of privilege and not right.”).
21 II. Conclusion and Orders
22 For the reasons set forth above, the Court:
23 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C.
24 § 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to
25 prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a);
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1 ||(3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28
2 ||U.S.C. § 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file.
3 IT IS SO ORDERED.
4 Dated: June 23, 2020 tt ,
5 jen Janis L. Sammartino
6 United States District Judge
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