finding that 28 U.S.C. § 1915(g) “does not 20 prevent all prisoners from accessing the courts; it only precludes prisoners with a history 21 of abusing the legal system from continuing to abuse it while enjoying IFP status”
How later courts described this case
- finding that 28 U.S.C. § 1915(g) “does not 20 prevent all prisoners from accessing the courts; it only precludes prisoners with a history 21 of abusing the legal system from continuing to abuse it while enjoying IFP status”
- “[C]ourt permission to 23 proceed IFP is itself a matter of privilege and not right.”
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 MARCUS BRENT FIELDS, Case No.: 3:23-cv-02107-CAB-BLM
CDCR #V-46240,
12
ORDER: (1) DENYING MOTION TO
Plaintiff,
13 PROCEED IN FORMA PAUPERIS
vs. AS BARRED BY 28 U.S.C. § 1915(g)
14
(2) DISMISSING CIVIL ACTION
15 FOR FAILURE TO PAY FILING
JEFF MACOMBER; KATHLEEN FEE REQUIRED BY 28 U.S.C.
16
ALLISON; RAYMOND MADDEN; § 1914(a) AND (3) DENYING
17 MRS. WARMSLEY; GRANT; MRS. MISCELLANEOUS MOTIONS
HUBBARD; MRS. BROWN; MRS. AS MOOT
18
OLMEDA; MR. HENDERSON,
19 Defendants. [ECF Nos. 2, 3]
20
21
22 Plaintiff Marcus Brent Fields, who is proceeding pro se and currently incarcerated
23 at Kern Valley State Prison, has filed a civil rights Complaint pursuant to 42 U.S.C. § 1983.
24 (See Compl., ECF No. 1.) While his Complaint is difficult to decipher, Plaintiff appears
25 to claim that prison officials and librarians employed at four different California prisons
26 have violated his right to access to the court by denying him adequate access to facility
27 libraries, legal research materials, and photocopies. (Id. at 1‒2, 4‒6.) He seeks injunctive
28 relief in the form of court-ordered priority library user (“PLU”) status, and asks to
1 “reinstate” several prior civil actions he filed both in this Court and in the Southern District
2 of New York against the CEO of Pfizer, whom he claimed was liable for producing tainted
3 Covid-19 vaccines. (Id. at 8, 11‒24, 31‒35.) Fields did not pay the full civil filing fee
4 required by 28 U.S.C. § 1914(a) at the time he filed suit; instead he filed a Motion to
5 Proceed In Forma Pauperis (“IFP”), followed by a motion requesting leave to add exhibits
6 and other forms of preliminary relief. (See ECF Nos. 2, 3.)
7 I. MOTION TO PROCEED IFP
8 A. Standard of Review
9 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County
10 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face
11 an additional hurdle.” Id.
12 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly
13 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison
14 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to
15 proceed IFP in cases where the prisoner:
16 . . . 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
17
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
18 upon which relief can be granted, unless the prisoner is under imminent
danger of serious physical injury.
19
20 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’
21 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to
22 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews
23 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the
24 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred
25 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further
26 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney
27 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
28 / / /
1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which
2 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,”
3 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court
4 styles such dismissal as a denial of the prisoner’s application to file the action without
5 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
6 When courts “review a dismissal to determine whether it counts as a strike, the style of the
7 dismissal or the procedural posture is immaterial. Instead, the central question is whether
8 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-
9 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738
10 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single
11 action,” however, courts may “assess a PLRA strike only when the case as a whole is
12 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152
13 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th
14 Cir. 2016)).
15 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit
16 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent
17 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051‒
18 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation
19 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).
20 B. Discussion
21 The Court has reviewed Fields’s Complaint and his exhibits and finds they contains
22 no “plausible allegations” to suggest he “faced ‘imminent danger of serious physical
23 injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)).
24 Instead, Plaintiff claims, among other things, that prison officials and librarians at his
25 former prisons—Richard J. Donovan Correctional Facility (“RJD”), California State
26 Prison Sacramento (“SAC”), California Men’s Colony (“CMC”) and California State
27 Prison Los Angeles County (“LAC”)—all limited his “heavy litigation” law library usage
28 in “discriminat[ory]” and “oppressive” ways. (See Compl. at 2, 5.)
1 These allegations do not support an exception to § 1915(g). See Cervantes, 493 F.3d
2 at 1057; see e.g., Simmons v. Kishbaugh, No. 2:19-cv-1650-TLN-EFB P, 2020 WL
3 1853038, at *1 (E.D. Cal. Apr. 13, 2020) (“plaintiff alleges an access to courts claim . . .
4 which fails to demonstrate that plaintiff was under imminent danger of serious physical
5 injury when he filed this action”); Thomas v. Parks, No. 1:16-cv-01393-LJO-JLT (PC)
6 2018 WL 4373021, at *2 (E.D. Cal. Sept. 13, 2018) (“Plaintiff’s allegations in this action
7 are based largely on difficulties with obtaining copies of legal documents he prepared for
8 other inmates and his access to the law library as well as acts of harassment and retaliation
9 . . . access to the courts, even if based on unconstitutional retaliatory motive, does not
10 equate to imminent danger of serious physical injury”).
11 And while Defendants typically carry the initial burden to produce evidence
12 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in
13 some instances, the district court docket may be sufficient to show that a prior dismissal
14 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id.
15 at 1120. That is the case here.
16 Based on a review of its own dockets and other court proceedings publicly available
17 on PACER,1 the Court finds that Plaintiff Marcus Brent Fields, identified as CDCR Inmate
18 #V-46240, while incarcerated, has had four prior civil actions and/or appeals dismissed on
19 the grounds that they were frivolous, malicious, or failed to state a claim upon which relief
20 may be granted.
21 / / /
22
23
1 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case No.
24
3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United
25 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
26
proceedings in other courts, both within and without the federal judicial system, if those
27 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212,
1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir.
28
1 They are:
2 (1) Fields v. Newsom, et al., Civil Case No. 3:22-cv-00044-LL-
MDD (S.D. Cal. May 16, 2022) (Order dismissing civil action without leave
3
to amend for failing to state a claim upon which § 1983 relief can be granted
4 and as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b)) (ECF No.
18) (strike one);
5
6 (2) Fields v. Newsom, et al., No. 22-55519 (Order dismissing appeal
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)) (9th Cir. Nov. 17, 2022) (Dkt.
7
No. 30) (strike two);
8
(3) Fields v. Bouria, et al., Civil Case No. 3:22-cv-01656-JLS-MSB
9
(S.D. Cal. Nov. 18, 2022) (Order dismissing civil action without leave to
10 amend for failing to state a claim and as frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(B)) (ECF No. 14) (strike three); and
11
12 (4) Fields v. Bouria, et al., No. 22-56171 (Order dismissing appeal
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)) (9th Cir. May 18, 2023)
13
(Dkt. No. 17) (strike four).
14
15 Accordingly, because Plaintiff has accumulated four prior dismissals—all qualifying
16 as strikes under § 1915(g)—and fails to make any “plausible allegations” of imminent
17 danger of serious physical injury at the time he filed his Complaint, he is not entitled to the
18 privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez v.
19 Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) “does not
20 prevent all prisoners from accessing the courts; it only precludes prisoners with a history
21 of abusing the legal system from continuing to abuse it while enjoying IFP status”); see
22 also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to
23 proceed IFP is itself a matter of privilege and not right.”).
24 II. CONCLUSION AND ORDERS
25 For the reasons discussed, the Court:
26 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28
27 U.S.C. § 1915(g);
28 / / /
1 (2) DISMISSES this civil action sua sponte without prejudice for failing to
2 || prepay the $402 civil and administrative filing fees required by 28 U.S.C. § 1914(a);
3 (3) DENIES Plaintiff's Motions to Add Exhibits and/or to Dismiss for Mediation
4 ||for Summary Judgment (ECF No. 3) as moot;
5 (4) CERTIFIES that an IFP appeal from this Order would not be taken in good
6 || faith pursuant to 28 U.S.C. § 1915(a)(3); and
7 (5) DIRECTS the Clerk of the Court to close the file.
8 IT IS SO ORDERED.
9 || Dated: December 19, 2023 € Z
10
Hon. Cathy Ann Bencivengo
1 United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6