Haywood v. San Diego, CA County et al, No. 3:2018cv01315 - Document 6 (S.D. Cal. 2018)
Court Description: ORDER Denying 3 Motion for Leave to Proceed in forma pauperis as Barred by 28 U.S.C. Section 1915(g). Denying 2 Motion for Immediate Injunction and Release. Signed by Judge Barry Ted Moskowitz on 9/21/2018. (All non-registered users served via U.S. Mail Service)(sjm)
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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ERICA D. HAYWOOD, Booking #18123564, ORDER: Plaintiff, 13 14 Case No.: 3:18-cv-01315-BTM-AGS vs. 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g) [ECF No. 3] 15 18 SAN DIEGO, CA County; CITY OF SAN DIEGO, CA, Government Cohort; NUMEROUS HOSPITALS; BIBB COUNTY, GA, Government Coalition, 19 Defendants. 16 17 2) DENYING MOTION FOR IMMEDIATE INJUNCTION AND RELEASE [ECF No. 2] 20 AND 21 3) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PRE-PAY CIVIL FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 22 23 24 25 26 ERICA D. HAYWOOD (“Plaintiff”), currently detained at the San Diego Sheriff 27 Department’s Las Colinas Detention and Re-Entry Facility, and proceeding pro se, has 28 filed a civil rights Complaint pursuant to 42 U.S.C. § 1983, naming the City and County 1 3:18-cv-01315-BTM-AGS 1 of San Diego, numerous unidentified hospitals, and Bibb County, Georgia, as 2 Defendants. See ECF No. 1 at 1-3. While far from clear, it appears Plaintiff seeks to sue 3 all these entities for “orchestrating” her “false arrest,” various acts of police and sexual 4 misconduct, and for denying her dental, mental, and “general health” needs. Id. at 2-9. 5 Plaintiff has not prepaid the $400 filing fee required to commence civil action 6 pursuant to 28 U.S.C. § 1914(a); instead she has filed a Motion to Proceed In Forma 7 Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). See ECF No. 3. Plaintiff has also filed 8 a single-paged “Motion for Immediate Injunction” in which she seeks her release from 9 custody due to alleged denials of diabetic snacks and “sugar checks.” See ECF No. 2. 10 I. Motion to Proceed IFP 11 A. 12 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County Standard of Review 13 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, 14 “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount 15 of a filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 16 § 1915(a)(3)(b), Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. 17 Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act 18 (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: 19 20 21 22 . . . 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. 23 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 24 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 25 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 26 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (under the 27 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be 28 barred from IFP status under the three strikes rule[.]”). The objective of the PLRA is to 2 3:18-cv-01315-BTM-AGS 1 further “the congressional goal of reducing frivolous prisoner litigation in federal court.” 2 Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior 3 dismissed claims applies to claims dismissed both before and after the statute’s effective 4 date.” Id. at 1311. 5 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 6 which were dismissed on the ground that they were frivolous, malicious, or failed to state 7 a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the 8 district court styles such dismissal as a denial of the prisoner’s application to file the 9 action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 10 (9th Cir. 2008); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 11 (noting that when courts “review a dismissal to determine whether it counts as a strike, 12 the style of the dismissal or the procedural posture is immaterial. Instead, the central 13 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 14 to state a claim.’”) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 15 Once a prisoner has accumulated three strikes, she is prohibited by section 1915(g) 16 from pursuing any other IFP civil action or appeal in federal court unless she claims to 17 face “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 18 493 F.3d at 1051-52 (noting § 1915(g)’s exception for IFP complaints which “make[] a 19 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 20 at the time of filing.”). 21 B. 22 As an initial matter, the Court has reviewed both Plaintiff’s Complaint as well as Discussion 23 her Motion for Immediate Injunction, and finds that neither contain any “plausible 24 allegations” to suggest she “faced ‘imminent danger of serious physical injury’ at the 25 time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 26 Instead, Plaintiff claims broadly to have been falsely arrested, and to have become 27 the victim of “judicial fraud,” and a “theft racket[],” subject to generalized “health care 28 neglect,” provided insufficiently nutritious food, non-organic and non-hypoallegenic 3 3:18-cv-01315-BTM-AGS 1 body products, to have otherwise been exposed to “unsanitary conditions,” and to have 2 been appointed only “aggressive and odd public defenders,” on “various days” beginning 3 in September 2017. See ECF No. 1 at 1-2, 5-9; ECF No. 2 at 1. These allegations are 4 plainly insufficient to plausibly show any ongoing or “imminent danger of serious 5 physical injury” at the time Plaintiff elected to file suit in June 2018. See 28 U.S.C. 6 § 1915(g). 7 Section § 1915(g)’s “imminent danger” exception is not triggered solely by 8 complaints of past harm. See Cervantes, 493 F.3d at 1053 (“The exception’s use of the 9 present tense, combined with its concern only with the initial act of ‘bring[ing]’ the 10 lawsuit, indicates to us that the exception applies if the danger existed at the time the 11 prisoner filed the complaint.”). Moreover, some of Plaintiff’s claims appear related to the 12 validity of her detention and ongoing criminal proceedings, see Compl., ECF No. 1 at 2, 13 8, and her conditions of confinement claims involve various aspects of her care and 14 custody over the course of nine months, allegedly at the hands of unidentified state and 15 county officials in both California and Georgia. Id. at 1, 5-7. But none of her claims 16 plausibly suggest a genuine emergency or rise to the level of an objectively concrete 17 and/or imminent physical harm. See e.g., Thompson v. Paleka, No. CV 17-00531 SOM- 18 KJM, 2017 WL 5309608, at *2 (D. Haw. Nov. 13, 2017) (finding prisoner’s claims of 19 having contracted a rash from a dirty shower, and being denied access to a nerve 20 specialist for back pain insufficient to meet § 1915(g)’s “imminent danger” exception). 21 And while Defendants typically carry the initial burden to produce evidence 22 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 23 some instances, the district court docket may be sufficient to show that a prior dismissal 24 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 25 at 1120. That is the case here. 26 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 27 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 28 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 4 3:18-cv-01315-BTM-AGS 1 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 2 notice of proceedings in other courts, both within and without the federal judicial system, 3 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 4 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 5 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria Citizens Council 6 v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992). 7 Therefore, this Court takes judicial notice that Plaintiff Erica D. Haywood, 8 currently identified as San Diego County Sheriff Department’s Booking #18123564,1 9 while incarcerated, has had at least five prior prisoner civil actions or appeals dismissed 10 on the grounds that they were frivolous, malicious, or failed to state a claim upon which 11 relief may be granted. 12 They are: 13 1) Haywood v. Fifth U.S. Circuit Court of Appeals, et al., Civil Case No. 4:09- 14 cv-00202 (S.D. Texas, March 12, 2009) (Memorandum Opinion and Order granting 15 application to proceed IFP and dismissing civil action with prejudice as “legally 16 baseless”) (ECF Nos. 8, 9) (strike one); 17 2) Haywood v. State of Georgia, Civil Case No. 1:10-cv-00039-TWT (N.D. 18 Georgia, Feb. 2, 2010) (Order and Opinion granting request to proceed IFP and 19 dismissing case as frivolous pursuant to 28 U.S.C. § 1915A) (ECF No. 3); (Feb. 3, 2010) 20 (Judgment) (ECF No. 4) (strike two); 21 3) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00448-XR 22 (W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint as frivolous, for 23 failure to state a claim, and for seeking relief from immune defendants pursuant to 28 24 25 Plaintiff has been previously identified in San Antonio Texas’s Bexar County Adult Detention Center as Inmate #804107, and as Inmate #933519 while she was detained in Atlanta Georgia’s Fulton County Jail. She further admits to having filed, and having had dismissed, at least one previous civil action while she was incarcerated in the Western District of Texas sometime in 2012. See Compl., ECF No. 1 at 10. 1 26 27 28 5 3:18-cv-01315-BTM-AGS 1 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)-(2)) (ECF Nos. 14, 15) (strike three); 2 4) Haywood v. Bexar County Sheriff, et al., Civil Case No. 5:11-cv-00467-XR 3 (W.D. Texas) (Aug. 1, 2011) (Order & Judgment Dismissing Complaint as frivolous, for 4 failure to state a claim, and for seeking relief from immune defendants pursuant to 28 5 U.S.C. § 1915(e)(2)(B)(i)-(iii) and § 1915A(b)(1)-(2)) (ECF Nos. 8, 9) (strike four); and 6 5) Haywood v. Bexar County, Texas, et al., Civil Case No. 5:11-cv-01115-FB 7 (W.D. Texas) (Feb. 1, 2012) (Report & Recommendation [“R&R”] to Dismiss § 1983 8 Complaint for failure to state a claim pursuant to 28 U.S.C. § 1915A) (ECF No. 3); (Feb. 9 28, 2012) (Order Adopting R&R and Judgment) (ECF Nos. 7, 8) (strike five). Accordingly, because Plaintiff has accumulated more than three “strikes” pursuant 10 11 to § 1915(g), and she fails to make a “plausible allegation” that she faced imminent 12 danger of serious physical injury at the time she filed her Complaint, she is not entitled to 13 the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at 1055; 14 Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (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.”).2 19 II. Conclusion and Order 20 For the reasons discussed, the Court: 21 1) 22 DENIES Plaintiff’s Motion to Proceed IFP as barred by 28 U.S.C. § 1915(g) [ECF No. 3]; 23 2) DISMISSES this civil action without prejudice based on Plaintiff’s failure 24 25 2 26 27 28 As a result of her litigation history, Plaintiff has also since been denied leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in the Western District of Texas. See Haywood v. Director Brad Livingston, et al., Civil Case No. 6:16-cv-00320-RP (Sept. 2, 2016) (Order Denying leave to proceed IFP and Dismissing Complaint without prejudice “pursuant to the three-dismissal rule of 28 U.S.C. § 1915(g).”) (ECF No. 4). 6 3:18-cv-01315-BTM-AGS 1 2 3 4 5 to prepay the civil filing fee required by 28 U.S.C. § 1914(a); 3) DENIES Plaintiff’s Motion for Immediate Injunction and Release [ECF No. 2] as moot; 4) CERTIFIES that an IFP appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and 6 5) 7 to close the file. 8 DIRECTS the Clerk of the Court to enter a final judgment of dismissal and IT IS SO ORDERED. 9 10 Dated: September 21, 2018 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 3:18-cv-01315-BTM-AGS
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