1 5 JS-6 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 || IAN LaMONTE CORMIER, Case No. 5:19-cv-01151-SVW (AFM) Plaintiff, 14 ORDER RE DISMISSAL Vv. (FAILURE TO PAY THE FILING 15 | RIVERSIDE COUNTY DISTRICT | FEE) 16 || ATTORNEY’S OFFICE, et al., 17 Defendants. 18 19 Plaintiff, a state prisoner presently held at Patton State Hospital, lodged for 20 || filing a pro se civil rights action pursuant to

on June 21, 2019, 21 || while he was being held at the Robert Presley Detention Center (“RPDC”) in 22 || Riverside, California. (ECF No. | at 1.) 23 A review of past civil actions filed by plaintiff in this Court, other District 24 || Courts in the Southern and Northern Districts of California, and in the Ninth Circuit 25 || Court of Appeals reflects that plaintiff 1s subject to the provisions of 28 U.S.C. 26 || §1915(g). Pursuant to §1915(g), a prisoner may not “bring a civil action or appeal a 27 || judgment in a civil action or proceeding” without prepayment of the filing fee “if the 2g || prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

1 || facility, brought an action or appeal in a court of the United States that was dismissed 2 || on the grounds that it is frivolous, malicious, or fails to state a claim upon which 3 || relief may be granted, unless the prisoner is under imminent danger of serious 4 || physical injury.”

(g). Such dismissal is deemed a “strike.” 5 The Ninth Circuit has held that the phrase “fails to state a claim on which relief 6 || may be granted” as used in §1915, parallels the language of Fed. R. Civ. P. 12(b)(6) 7 || and carries the same interpretation; that the word “frivolous” refers to a case that is 8 || “of littke weight or importance: having no basis in law or fact”; and the word 9 || “malicious” refers to a case “filed with the ‘intention or desire to harm another.’” See 10 || Andrews v. King,

(9th Cir. 2005) (explaining the terms used in 11 || §1915(g)); see also Knapp v. Hogan,

(9th Cir. 2013) (defining 12 || when a case is frivolous, malicious, or duplicative). In addition, the Ninth Circuit 13 || has held that the prior denial of in forma pauperis (“IFP”) status on the basis of 14 || frivolity or failure to state a claim constitutes a strike for purposes of §1915(g). See 15 || O’Neal v. Price,

(9th Cir. 2008) (also stating that a dismissal 16 || without prejudice may count as a strike). Further, a dismissal may constitute a strike 17 || for failure to state a claim if it is obvious from the face of the pleading that the claims 18 || are barred by Heck v. Humphrey,

(1994), and the entire action 19 | is dismissed for a reason that qualifies as a strike under §1915(g). Washington v. 20 || Los Angeles Cty. Sheriff's Dep’t,

(9th Cir. 2016) (holding that 21 || “a dismissal may constitute a PLRA strike . .. when Heck’s bar to relief is obvious 22 || from the face of the complaint, and the entirety of the complaint is dismissed for a 23 || qualifying reason under the PLRA”). Further, appellate affirmances do not count as 24 || strikes when the appeal affirms the decision of the district court, but an appeal will 25 || count as a separate strike if the appellate court “expressly states that the appeal itself 26 || was frivolous, malicious or failed to state a claim.” El-Shaddai v. Zamora,

|| 1036, 1045-46 (9th Cir. 2016). 28 Once plaintiff has accumulated three strikes, he is prohibited from pursuing

1 || any subsequent civil action without prepayment of the filing fee, unless he makes a 2 || showing that he faced “imminent danger of serious physical injury” based on the 3 || “circumstances at the time of the filing of the complaint.” Andrews v. Cervantes, 493 4 | F.3d 1047, 1052-53, 1056-57 (9th Cir. 2007). 5 Finally, the Ninth Circuit has held that, pursuant to the language of the statute 6 || and other relevant definitions of “prisoner,” “a court may screen a complaint pursuant 7 | to 28 U.S.C. §1915A only if, at the time the plaintiff files the complaint, he is 8 || ‘incarcerated or detained in any facility [because he] is accused of, convicted of, 9 || sentenced for, or adjudicated delinquent for, violations of criminal law or the terms 10 || and conditions of parole, probation, pretrial release, or diversionary program.’” 11 || Olivas v. Nev. ex rel. Dep’t of Corr.,

(9th Cir. 2017) (alteration 12 || in original). This definition of “prisoner” applies to §1915. See Page v. Torrey, 201 13 || F.3d 1136, 1139-40 (9th Cir. 2000). 14 In light of the foregoing standards, the Court takes judicial notice of the 15 || following prior civil actions filed by plaintiff in the District Courts of California or 16 || in the Ninth Circuit Court of Appeal that qualify as strikes for purposes of §1915(g). 17 || See Fed. R. Evid. 201(b)(2), (c)(1): 18 (1) Cormier v. Liggins, Case No. CV 01-0364-K (LSP), in the Southern 19 District of California, in which the case was dismissed on May 8, 2001, for 20 failure to state a claim and as barred by Heck. (No. 01-0364, ECF No. 2 21 at 4-7; No. 3.) The district court also found in Liggins that plaintiff already 22 had three prior strikes within the meaning of §1915(g). (No. 01-0364, ECF 23 No. 2 at 4.) On Appeal, in Case No. 01-55857, the Ninth Circuit affirmed 24 the district court’s dismissal in Liggins. (No. 01-0364, ECF Nos. 15-16.) 25 The Liggins case, as well as the three earlier cases cited in that case (see 26 below), all count as separate strikes, constituting four prior strikes. 27 a. Cormier y. People of the State of California, Case No. CV 00-0249- 28 L (RBB), in the Southern District of California, in which the case

1 was dismissed on March 21, 2000, for failure to state a claim and as 2 barred by Heck. The district court indicated that the dismissal may 3 be considered as a strike. (No. 00-0249, ECF No. 7 at 10-11, No. 8.) 4 The district court’s decision was affirmed on appeal. (No. 00-0249, 5 ECF No. 18.) 6 b. Cormier v. Manny, Case No. CV 00-0025-W (CGA), in the Southern 7 District of California, in which the case was dismissed on May 1, 8 2000, for failure to state a claim. Further, the district court indicated 9 that the dismissal may count as a strike. (No. 00-0025, ECF No. 16.) 10 c. Cormier v. California, Case No. CV 00-0004-L (RBB), in the 11 Southern District of California, in which the case was dismissed on 12 May 11, 2000, for failure to state a claim and as barred by Heck. (No. 13 00-0004, ECF No. 14 at 7-8, No. 15.) 14 (2) Cormier v. Suter, Case No. EDCV 11-0801-UA (MLG), in the Central 15 District of California, in which plaintiff's IFP Request was denied and the 16 case dismissed as frivolous on June 3, 2011. (No. 11-0801, ECF No. 2.) 17 In addition, the Ninth Circuit affirmed the district court’s dismissal and 18 found that plaintiffs appeal was frivolous. (No. 11-0801, ECF Nos. 9, 12.) 19 (3) Cormier v. Siegler, Case No. CV 11-4907-ABC (MLG), in the Central 20 District of California, in which, on July 22, 2011, plaintiff's IFP Request 21 was denied as frivolous, malicious, or fails to state a claim, and the District 22 Judge indicated that the dismissal may count as a strike. (No. 11-4907, 23 ECF No. 4 at 1). On Appeal, the Ninth Circuit affirmed the district court 24 and found that the appeal was frivolous. (See No. 11-4907, ECF Nos. 10, 25 16;

(9th Cir. 2013).) 26 Because plaintiff had already accumulated significantly more than three strikes 27 || (at least six) before he initiated this action, plaintiff □□ precluded from proceeding IFP 28 || herein unless and until he can show that, at the time this action was initiated, he was

1 || “under imminent danger of serious physical injury.”

(g). The 2 || availability of the “imminent danger” exception “turns on the conditions a prisoner 3 || faced at the time the complaint was filed, not at some earlier or later time.” See 4 || Andrews, 493 F.3d at 1053 (emphasis added). Further, plaintiff “bears the ultimate 5 || burden of persuading the court that §1915(g) does not preclude IFP status.” Richey 6 || v. Dahne,

(9th Cir. 2015). Here, plaintiff was detained at the 7 || RPDC at the time that he initiated this action, but plaintiff does not name as 8 || defendants any officials at the RPDC in this case. Nor does the Complaint in this 9 || action raise allegations concerning the conditions that plaintiff faced at the RPDC at 10 || the time that he filed the Complaint. Accordingly, nothing in the factual allegations 11 || in the Complaint raises a reasonable inference that plaintiff faced “imminent danger 12 || of serious physical injury” at the time that he initiated this action. 28 U.S.C. 13 | §1915(g). 14 On August 8, 2019, plaintiff was ordered to pay the filing fee in this action or 15 || show cause in writing why he should not be denied leave to proceed IFP and why 16 || this action should not be dismissed pursuant to

(g), no later than 17 || August 23, 2019. Plaintiff was admonished that failure to comply with this Order 18 || will be deemed by the Court as plaintiff's consent to the dismissal of this action. On 19 || September 3, 2019, plaintiff submitted his debit card information for payment of the 20 || filing fee. On September 10, 2019, plaintiff was advised that the Court accepts only 21 || cashier’s checks, certified bank checks, business or corporate checks, government 22 || issued checks, or money orders drawn on a major American bank or the United States 23 || Postal Service. Plaintiff's deadline for payment was extended to October 1, 2019. A 24 || review of the docket as of the date of this Order indicates that the filing fee has not 25 || been paid by plaintiff. 26 In addition, plaintiff's September 3 response claims that Riverside County 27 || Deputy Sheriff Ibarra placed an edible item on his dinner tray on Easter, which 28 || prompted severe diarrhea. The Complaint alleges that plaintiff's interactions with

1 || Deputy Ibarra took place at Moreno Valley Community Hospital. At the time he 2 || filed the Complaint, however, plaintiff was being held at the RPDC, and he does not 3 || name as defendants any officials at that facility. Moreover, the alleged events on 4 || Easter were months before the filing of the Complaint on June 21, 2019. Thus, 5 || plaintiff's allegations do not give rise to a showing of an “imminent danger of serious 6 || physical injury” at the time the Complaint was filed. 7 Accordingly, this case is hereby dismissed without prejudice due to □□□□□□□□□□□ 8 || failure to pay the filing fee. 9 IT IS SO ORDERED. 10 11 || DATED: — October 17, 2019

STEPHEN WILSON. 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28