Herbaugh v. San Diego Sheriff Dept. et al, No. 3:2018cv01899 - Document 3 (S.D. Cal. 2018)
Court Description: ORDER Denying 2 Motion for Leave to Proceed in Forma Pauperis as Barred by 28 U.S.C. § 1915(g), and Dismissing Civil Action Without Prejudice for Failure to pay Filing Fee Required by 28 U.S.C. § 1914(a). The Court:1. DENIES Plaintiff� 39;s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g);2. DISMISSESWITHOUT PREJUDICE this civil action based on Plaintiff's failure to pay the full statutory and administrative $400 civil filing fee required by 28 U.S. C. § 1914(a);3. 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). See Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal would not be frivolous); and 4. DIRECTS the Clerk of the Court to close the file. Signed by Judge Janis L. Sammartino on 10/17/2018. (All non-registered users served via U.S. Mail Service)(acc)
Download PDF
<![CDATA[
Herbaugh v. San Diego Sheriff Dept. et al Doc. 3 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 JOHN HERBAUGH, et al., Booking No. 18120621, 15 16 17 18 ORDER (1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS BARRED BY 28 U.S.C. § 1915(g), AND (2) DISMISSING CIVIL ACTION WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) Plaintiff, 13 14 Case No.: 3:18-cv-01899-JLS-NLS vs. SAN DIEGO SHERIFF’S DEPT.; SAN DIEGO SHERIFF’S DEPT. MEDICAL STAFF, Defendants. (ECF No. 2) 19 20 Plaintiff John Herbaugh, while detained at San Diego County Sheriff’s Department’s 21 George Bailey Detention Facility (“GBDF”), and proceeding pro se, has filed a civil rights 22 Complaint pursuant to 42 U.S.C. § 1983 on behalf of himself and 39 other unidentified 23 GBDF inmates. See Compl., ECF No. 1 at 1. 24 Plaintiff claims the San Diego County Sheriff’s Department and its “Medical Staff” 25 have committed various Health & Safety Code violations at GBDF, subjected him and 26 others to unsanitary conditions, and have committed “medical malpractice” with respect to 27 patient care. Id. at 2–5. He seeks $11 million in general and punitive damages, and 28 injunctive relief requiring the Sheriff’s Department to “publically announce [its] 1 3:18-cv-01899-JLS-NLS Dockets.Justia.com 1 wrongdoing and neglect.” Id. at 7. 2 Plaintiff did not prepay the filing fee required to commence a civil action at the time 3 he filed his Complaint; instead, he filed a Motion for Leave to Proceed In Forma Pauperis 4 (“IFP”) pursuant to 28 U.S.C. § 1915(a). ECF No. 2. 5 LEGAL STANDARD 6 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. 7 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 8 . . . additional hurdle[s].” Id. 9 Specifically, in addition to requiring prisoners to “pay the full amount of a filing 10 fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), 11 Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 12 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended section 13 1915 to preclude the privilege to proceed IFP: 14 15 16 17 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. 18 19 28 U.S.C. § 1915(g). 20 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) (“King”). “This subdivision is commonly known as the ‘three strikes’ 21 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 22 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (“Cervantes”) 23 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 24 entirely be barred from IFP status under the three strikes rule”). The objective of the PLRA 25 is to further “the congressional goal of reducing frivolous prisoner litigation in federal 26 court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap 27 on prior dismissed claims applies to claims dismissed both before and after the statute’s 28 effective date.” Id. at 1311. 2 3:18-cv-01899-JLS-NLS 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 King, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles 4 such dismissal as a denial of the prisoner’s application to file the action without prepayment 5 of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts 6 “review a dismissal to determine whether it counts as a strike, the style of the dismissal or 7 the procedural posture is immaterial. Instead, the central question is whether the dismissal 8 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 9 Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 10 615 (4th Cir. 2013)). 11 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 12 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 13 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051– 14 52 (noting section 1915(g)’s exception for IFP complaints that “make[] a plausible 15 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time 16 of filing”). 17 ANALYSIS 18 As an initial matter, the Court has reviewed Plaintiff’s Complaint, and finds it does 19 not contain any “plausible allegations” to suggest he “faced ‘imminent danger of serious 20 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. 21 § 1915(g)). Plaintiff claims the conditions at GBDF are generally unsanitary. For example, 22 he complains that he has been subjected to foul odors, bugs, and vermin. He further 23 contends that GBDF staff use cross-contaminated mops and soiled towels, and GBDF 24 nurses failed to change their gloves between patients on unspecified occasions between the 25 months of June and August 2018. See Compl., ECF No. 1 at 3–5. 26 To qualify for section 1915(g)’s exception, however, the danger he alleges to face 27 must be real, proximate, and/or ongoing. Cervantes, 493 F.3d at 1055; see also Blackman 28 v. Mjening, 1:16-cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 3 3:18-cv-01899-JLS-NLS 1 2016) (“Imminent danger of serious physical injury must be a real, present threat, not 2 merely speculative or hypothetical.”). “[V]ague and utterly conclusory assertions” of 3 imminent danger are insufficient. White v. Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 4 1998); see also Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003) (“[C]onclusory 5 assertions” are “insufficient to invoke the exception to § 1915(g)”); Pauline v. Mishner, 6 No. 09-00182 JMS/KSC, 2009 WL 1505672, at *3 (D. Haw. May 28, 2009) (“Plaintiff’s 7 vague and conclusory allegations of possible future harm to himself or others are 8 insufficient to trigger the ‘imminent danger of serious physical injury’ exception to 9 dismissal under § 1915(g).”). The “imminent danger” exception is available “for genuine 10 emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. 11 Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 12 And while Defendants typically carry the initial burden to produce evidence 13 demonstrating a prisoner is not entitled to proceed IFP, King, 398 F.3d at 1119, “in some 14 instances, the district court docket may be sufficient to show that a prior dismissal satisfies 15 at least one on the criteria under section 1915(g) and therefore counts as a strike.” Id. at 16 1120. That is the case here. 17 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv- 18 00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing United States 19 v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t 20 Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings 21 in other courts, both within and without the federal judicial system, if those proceedings 22 have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th 23 Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see 24 also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 25 244, 248 (9th Cir. 1992). 26 Therefore, this Court takes judicial notice of its own records and finds that Plaintiff 27 John David Herbaugh, currently identified under San Diego County Sheriff’s Department 28 Booking No. 18120621, while incarcerated, has had three prior civil actions over the course 4 3:18-cv-01899-JLS-NLS 1 of this calendar year alone dismissed on the grounds that they were frivolous, malicious, 2 or failed to state a claim upon which relief may be granted. 3 They are: 4 1. Order Granting Motion to Proceed IFP and Dismissing Civil Action for 5 Failing to State a Claim Pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, Herbaugh v. 6 Cohen, No. 3:18-CV-01580 WQH (WVG) (S.D. Cal. Aug. 7, 2018), ECF No. 3 (strike 7 one); 8 2. Order Dismissing Civil Action for Failing to State a Claim pursuant to 28 9 U.S.C. §§ 1915(e)(2) and 1915A(b) and for Failing to Prosecute in Compliance with Court 10 Order Requiring Amendment, Herbaugh v. 3970 ARJIS, No. 3:18-CV-01316 AJB (BLM) 11 (S.D. Cal. Sept. 10, 2018), ECF No. 7 (strike two); and 12 3. Order Dismissing Plaintiff Herbaugh’s Complaint as Frivolous and for Failing 13 to State a Claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b), Herbaugh v. San Diego 14 Sheriffs Dep’t, No. 3:18-CV-01748 BAS (WVG) (S.D. Cal. Sept. 11, 2018), ECF No. 4 15 (strike three). 16 Accordingly, because Plaintiff has, while incarcerated, accumulated three strikes 17 pursuant to section 1915(g), and has failed to make a plausible allegation that he faced 18 imminent danger of serious physical injury at the time he filed his Complaint, he is not 19 entitled to the privilege of proceeding IFP in this civil action. See Cervantes, 493 F.3d at 20 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 21 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 22 prisoners with a history of abusing the legal system from continuing to abuse it while 23 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 24 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 1 25 26 27 28 1 District Judge Gonzalo P. Curiel also has recently denied Plaintiff leave to proceed IFP pursuant to 28 U.S.C. § 1915(g) in Herbaugh v. 3970 ARJIS, No. 3:18-CV-01806 GPC (MDD) (S.D. Cal. Oct. 9, 2018), ECF No. 5. 5 3:18-cv-01899-JLS-NLS 1 2 3 4 5 CONCLUSION For the reasons explained above, the Court: 1. DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. § 1915(g); 2. DISMISSES WITHOUT PREJUDICE this civil action based on Plaintiff’s 6 failure to pay the full statutory and administrative $400 civil filing fee required by 28 7 U.S.C. § 1914(a); 8 3. CERTIFIES that an IFP appeal from this Order would be frivolous and, 9 therefore, would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3). See 10 Coppedge v. United States, 369 U.S. 438, 445 (1962); Gardner v. Pogue, 558 F.2d 548, 11 550 (9th Cir. 1977) (indigent appellant is permitted to proceed IFP on appeal only if appeal 12 would not be frivolous); and 13 4. 14 IT IS SO ORDERED. DIRECTS the Clerk of the Court to close the file. 15 16 Dated: October 17, 2018 17 18 19 20 21 22 23 24 25 26 27 28 6 3:18-cv-01899-JLS-NLS
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
