under the PLRA, “[p]risoners who have 9 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the 10 three strikes rule[.]”
How later courts described this case
- under the PLRA, “[p]risoners who have 9 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the 10 three strikes rule[.]”
- ‘[C]ourt permission to proceed IFP is 12 ||itself a matter of privilege and not right.”
Written by the judges who cited it.
The opinion
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5 UNITED STATES DISTRICT COURT
6 FOR THE SOUTHERN DISTRICT OF CALIFORNIA
7
ELBERT LEE VAUGHT IV, Case No. 21-cv-00014-BAS-LL
8 CDCR # H-56089,
9 Plaintiff, ORDER:
10 v. (1) DENYING MOTION TO
11 BOARD OF PAROLE; CDCR; PROCEED IN FORMA
M. POLLARD; KATHLEEN ALLISON; PAUPERIS (ECF No. 2);
12 ROBERTS; STANTON; ALBERT
OPPEDISANO; DOES 1-4, (2) DISMISSING ACTION
WITHOUT PREJUDICE FOR
13
FAILURE TO PAY FILING FEE
Defendants.
14
15 Plaintiff, Elbert Lee Vaught, currently incarcerated at the Richard J. Donovan
16 Correctional Facility (“RJD”) located in San Diego, California, has filed a civil action.
17 (ECF No. 1.) Plaintiff has also filed a prison certificate completed by an RJD accounting
18 official and a copy of his inmate trust account statement which the Court liberally construes
19 to be a Motion to Proceed In Forma Pauperis (“IFP”). (See ECF No. 2.)
20 I. MOTION TO PROCEED IFP
21 A. Standard of Review
22 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty.
23 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face
24 an additional hurdle.” Id.
25 In addition to requiring prisoners to “pay the full amount of a filing fee” in “monthly
26 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison
27 Litigation Reform Act (“PLRA”) amended § 1915 to preclude the privilege to proceed IFP
28 in cases where the prisoner:
1 . . . 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
2
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
3 upon which relief can be granted, unless the prisoner is under imminent
danger of serious physical injury.
4
5 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
6 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to
7 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews
8 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (under the PLRA, “[p]risoners who have
9 repeatedly brought unsuccessful suits may entirely be barred from IFP status under the
10 three strikes rule[.]”). The objective of the PLRA is to further “the congressional goal of
11 reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310,
12 1312 (9th Cir. 1997).
13 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which
14 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”
15 King, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles
16 such dismissal as a denial of the prisoner’s application to file the action without prepayment
17 of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts
18 “review a dismissal to determine whether it counts as a strike, the style of the dismissal or
19 the procedural posture is immaterial. Instead, the central question is whether the dismissal
20 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v.
21 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607,
22 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single action,”
23 however, courts may “assess a PLRA strike only when the case as a whole is dismissed for
24 a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 (9th Cir.
25 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)).
26 Once a prisoner has accumulated three strikes, § 1915(g) prohibits his pursuit of any
27 subsequent IFP civil action or appeal in federal court unless he faces “imminent danger of
28 serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52 (noting
1 § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that the
2 prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).
3 B. Discussion
4 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible
5 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time
6 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). And while
7 Defendants typically carry the initial burden to produce evidence demonstrating a prisoner
8 is not entitled to proceed IFP, “in some instances, the district court docket may be sufficient
9 to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and
10 therefore counts as a strike.” King, 398 F.3d at 1119–20. That is the case here.
11 A court may take judicial notice of its own records. See Molus v. Swan, No. 3:05-
12 cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
13 States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros.
14 Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015). A court also “‘may take notice
15 of proceedings in other courts . . . if those proceedings have a direct relation to matters at
16 issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v.
17 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)).
18 Based on a review of its own docket and other court proceedings available on
19 PACER, the Court finds that Plaintiff Elbert Lee Vaught IV, identified as CDCR Inmate
20 #H-56089, while incarcerated, has had at least three prior civil actions dismissed on the
21 grounds that they were frivolous, malicious, or failed to state a claim upon which relief
22 may be granted. They are:
23 (1) Vaught v. G. Ugwueze, et al., No. 1:11-cv-00623-DLB (C.D. Cal. Dec. 17,
24 2012) (Order Dismissing Action, with prejudice, for failure to state a claim
25 upon which relief may be granted);
26 (2) Vaught v. Oppediasano, et al., No. 3:20-cv-015100-MMA-RBB (S.D. Cal. Jan.
27 22, 2021) (Order Dismissing Civil Action for failing to state a claim and for
28 failing to prosecute in compliance with Court Order requiring amendment);
1 (3) Vaught v. Phillips, et al., No. 3:20-cv-01728-DMS-MSB (S.D. Cal. Jan. 28,
2 2021) (Order Dismissing Civil Action for failing to state a claim and for failing
3 to prosecute in compliance with Court Order requiring amendment).
4 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three
5 || “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced
6 ||imminent danger of serious physical injury at the time he filed his Complaint, he is not
7 |{entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055;
8 || Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all
9 || prisoners from accessing the courts; it only precludes prisoners with a history of abusing
10 || the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin
11 Murphy, 745 F.2d 1221, 1231 (th Cir. 1984) (‘[C]ourt permission to proceed IFP is
12 ||itself a matter of privilege and not right.”).
13 CONCLUSION AND ORDERS
14 For the reasons set forth above, the Court:
15 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28
16 U.S.C. § 1915(g);
17 (2) DISMISSES this civil action sua sponte without prejudice for failing to
18 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a);
19 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant
20 28 U.S.C. § 1915(a)(3); and
21 (4) DIRECTS the Clerk of the Court to close the file.
22 IT IS SO ORDERED.
23 /)
24 ||DATED: February 2, 2021 Cif Wd Hohe iL □
25 United States District Judge
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