Miller v. Gore et al, No. 3:2013cv02785 - Document 12 (S.D. Cal. 2014)
Court Description: ORDER Denying 2 Motion for Leave to Proceed in forma pauperis and 6 Motion to Appoint Counsel; granting 4 Plaintiffs Motion to Correct the Spelling of Defendant Pena's name on the docket and denying 4 Motion request for Local Rules as moot. The Court hereby dismisses this action without prejudice for failure to pay the $400 civil filing and administrative fee required by 28 U.S.C. § 1914(a); and Certifies that an IFP appeal from this Order would be frivolous and therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). Signed by Judge John A. Houston on 4/25/2014. (All non-registered users served via U.S. Mail Service)(sjt)(jrd)
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Miller v. Gore et al Doc. 12 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 CHARLES MILLER, Booking #13761632, Former CDCR #F-88264, #T-186631, Plaintiff, 14 vs. 17 18 19 20 21 13cv2785 JAH (JLB) ORDER: (1) DENYING PLAINTIFF’S MOTIONS TO PROCEED IN FORMA PAUPERIS AND FOR APPOINTMENT OF COUNSEL AS BARRED BY 28 U.S.C. § 1915(g) (ECF Doc. Nos. 2, 6) 15 16 Civil No. WILLIAM D. GORE, Sheriff; DANIEL PENA, Deputy Sheriff (Captain); CARL BREWER, Deputy Sheriff; JOHN DOE, Deputy Sheriff, (2) GRANTING PLAINTIFF’S MOTION TO CORRECT SPELLING BUT DENYING HIS REQUEST FOR LOCAL RULES AS MOOT (ECF Doc. No. 4) AND 22 Defendants. 23 24 (2) DISMISSING CIVIL ACTION FOR FAILURE TO PAY FILING FEES REQUIRED BY 28 U.S.C. § 1914(a) 25 26 Charles Miller (“Plaintiff”), who is currently detained at Los Angeles Men’s 27 Central Jail, and proceeding pro se, has filed this civil rights action pursuant to 42 U.S.C. 28 § 1983. Plaintiff has not prepaid the civil filing fee required by 28 U.S.C. § 1914(a); I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 1 13cv2785 JAH (JLB) Dockets.Justia.com 1 instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 2 U.S.C. § 1915(a) (ECF Doc. No. 2).1 3 In addition, Plaintiff has submitted a Motion requesting that the Clerk correct the 4 spelling of Defendant Pena’s name and a copy of the Court’s Local Rules (ECF Doc. No. 5 4), as well as a Motion for Appointment of Counsel (ECF Doc. No. 6) pursuant to 28 6 U.S.C. § 1915(e)(1). 7 I. 8 Motion to Proceed IFP 9 Section 1915 of Title 28 of the United States Code allows certain litigants to 10 pursue civil litigation IFP, that is, without the full prepayment of fees or costs. 28 U.S.C. 11 § 1915(a)(2). However, the Prison Litigation Reform Act (“PLRA”) amended section 12 1915 to preclude the privilege to proceed IFP: . . . if [a] 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. 13 14 15 16 17 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (hereafter 19 “Andrews”). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed 20 IFP.” Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter 21 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 22 suits may entirely be barred from IFP status under the three strikes rule[.]”). The 23 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 24 litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 25 /// 26 27 28 1 On January 30, 2014, Plaintiff filed a Notice of Change of Address indicating his transfer from the San Diego Central Jail to the LA Central Jail (ECF Doc. No. 7). I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 2 13cv2785 JAH (JLB) 1 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 2 which were dismissed on the ground that they were frivolous, malicious, or failed to state 3 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 4 district court styles such dismissal as a denial of the prisoner’s application to file the 5 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 6 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by 7 section 1915(g) from pursuing any other IFP action in federal court unless he can show 8 he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); 9 Cervantes, 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which 10 “make[] a plausible allegation that the prisoner faced ‘imminent danger of serious 11 physical injury’ at the time of filing.”). 12 II. 13 Application of 28 U.S.C. § 1915(g) 14 As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and 15 has ascertained that there is no “plausible allegation” to suggest Plaintiff “faced 16 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d 17 at 1055 (quoting 28 U.S.C. § 1915(g)). Plaintiff alleges that Defendants, all San Diego 18 County Jail officials, limited his access to a law library, found him guilty of a rules 19 violation because he is “an inmate who is a grievance writer,” and denied his requests 20 for a pillow, an extra mattress, blanket, and shoes with arch supports. See Compl. at 3-5. 21 Nothing in Plaintiff’s Complaint suggests he faced any “‘ongoing danger” of serious 22 physical injury sufficient to “meet the imminence prong of the three-strikes exception” 23 at the time he filed his Complaint. Cervantes, 493 F.3d at 1057. Therefore, Plaintiff 24 may be barred from proceeding IFP in this action if he has on three prior occasions had 25 civil actions or appeals dismissed as frivolous, malicious or for failing to state a claim. 26 See 28 U.S.C. § 1915(g). 27 /// 28 /// I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 3 13cv2785 JAH (JLB) 1 A court “‘may take notice of proceedings in other courts, both within and without 2 the federal judicial system, if those proceedings have a direct relation to matters at 3 issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. 4 Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. 5 Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 6 Thus, this Court takes judicial notice that Plaintiff Charles Miller, currently 7 identified under Booking No. 13761632, aka Charles Lamont Miller, former CDCR #T- 8 18663 and #F-88264,2 has had at least five prior prisoner civil actions dismissed on the 9 grounds that they were frivolous, malicious, or failed to state a claim upon which relief 10 may be granted. See 28 U.S.C. § 1915(g). 11 They are: 12 1) Miller v. Kolender, et al., Civil Case No. 01-cv-1061 JM (NLS) (S.D. Cal. 13 Aug. 29, 2001) (Order dismissing complaint for failing to state a claim pursuant to 28 14 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1)) (ECF Doc. No. 7) & (S.D. Cal. Aug. 5, 15 2008) (Order Denying Motion for Reconsideration) (ECF Doc. No. 22) (strike one); 16 2) Miller v. Hudgins, et al., Civil Case No. 01-cv-1615 BTM (JFS) (S.D. Cal. 17 Nov. 26, 2001) (Order dismissing complaint for failing to state a claim pursuant to 28 18 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1)) (ECF Doc. No. 4) (strike two); 19 3) Miller v. Vandyke, et al., Civil Case No. 02-cv-1490 BTM (JFS) (S.D. Cal. 20 Oct. 2, 2002) (Order denying motion to proceed IFP and dismissing action for failing to 21 state a claim pursuant to 28 U.S.C. § 1915A(b)) (ECF Doc. No. 5) (strike three); 22 4) Miller v. Hernandez, et al., Civil Case No. 02-cv-1653 JAH (NLS) (S.D. 23 Cal. Aug. 29, 2002) (Order dismissing complaint for failing to state a claim pursuant to 24 28 U.S.C. §§ 1915(e)(2)(b)(ii) & 1915A(b)(1)) (ECF Doc. No. 5) & (S.D. Cal. Nov. 21, 25 2 The Court has verified with the California Department of Corrections and Rehabilitation’s ID Warrants Unit that Plaintiff, Charles Lamont Miller, former designated 27 CDCR Inmate #F-88264, is the same prisoner who was previously designated as Inmate #T18663. According to the ID Warrants Unit, Inmate #T-18663 was “discharged” on December 28 18, 2003, and Plaintiff was designated with new CDCR Inmate #F-88264 upon a later recommitment. 26 I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 4 13cv2785 JAH (JLB) 1 2003) (Judgment of Dismissal for failure to prosecute) (ECF Doc. No. 21) (strike four); 2 and 5) 3 Miller v. Brooks, et al., Civil Case No. 03-cv-0155 GHK (FFM) (C.D. Cal., 4 West. Div., June 15, 2007) (Order granting Motion to Dismiss for failure to state a claim 5 pursuant to FED.R.CIV.P. 12(b)(6)) (ECF Doc. No. 98); (C.D. Cal. West. Div., Aug. 16, 6 2007) (Report and Recommendation to Dismiss for failure to comply with Court Order 7 requiring amendment) (ECF Doc. No. 100); (C.D. Cal. West. Div., Oct. 16, 2007) (Order 8 adopting findings, conclusions and recommendations and dismissing action) (ECF Doc. 9 No. 103) (strike five).3 10 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than 11 the three “strikes” permitted pursuant to § 1915(g), and he fails to make a “plausible 12 allegation” that he faced imminent danger of serious physical injury at the time he filed 13 his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See 14 Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. 15 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 16 prisoners with a history of abusing the legal system from continuing to abuse it while 17 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 18 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 19 III. 20 Conclusion and Order 21 For the reasons set forth above, the Court hereby: 22 1) DENIES Plaintiff’s Motions to Proceed IFP (ECF Doc. No. 2) and for 23 Appointment of Counsel (ECF Doc. No. 6) pursuant to 28 U.S.C. § 1915(g); 24 /// 25 26 3 The Court notes Plaintiff was previously denied IFP pursuant to 28 U.S.C. § 1915(g) in Miller v. Kolender, et al., S.D. Cal. Civil Case No. 09-cv-2803 W (NLS) (Dec. 31, 2009 Order 28 Denying Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g) and Dismissing Civil Action for Failure to Pay Filing Fees [ECF Doc. No. 5]). 27 I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 5 13cv2785 JAH (JLB) 1 2 3 4 5 2) GRANTS Plaintiff’s Motion to Correct the Spelling of Defendant Pena’s name on the docket, but DENIES his request for Local Rules as moot (ECF Doc. No. 4); 3) DISMISSES this action without prejudice for failure to pay the $400 civil filing and administrative fee required by 28 U.S.C. § 1914(a), and 4) CERTIFIES that an IFP appeal from this Order would be frivolous and 6 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 7 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 8 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if 9 appeal would not be frivolous). 10 The Clerk is instructed to close the file. 11 IT IS SO ORDERED. 12 13 DATED: April 25, 2014 ___________________________________ HON. JOHN A. HOUSTON United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I:\Everyone\_EFILE-PROSE\JAH\13cv2785-deny-IFP-1915(g).wpd 6 13cv2785 JAH (JLB)
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