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7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT HATCHER, Case No. 19-cv-00652-BAS-BLM CDCR #BJ8474, 12 ORDER: Plaintiff, 13 (1) DENYING MOTION TO v. PROCEED IN FORMA PAUPERIS 14 AS BARRED BY

(g) [ECF No. 3] 15 OLIVA AURTHER, et al., (2) DISMISSING CIVIL ACTION 16 WITHOUT PREJUDICE FOR Defendants. FAILURE TO PAY FILING FEE 17 REQUIRED BY

(a) 18 19 20 Pro se Plaintiff Robert Hatcher, formerly housed at the San Diego Central Jail,1 has 21 filed a civil rights Complaint (“Compl.”) pursuant to

. (ECF No. 1.) 22 Plaintiff has not prepaid the full civil filing fee required by

(a). Instead, 23 he has filed a motion to proceed in forma pauperis (“IFP”) (ECF No. 3). For the reasons 24 herein, the Court denies Plaintiff’s IFP motion and dismisses this action without prejudice. 25 26 27 1 Plaintiff is now a state inmate currently housed at the California Institution for Men located in Chino, California. See https://inmatelocator.cdcr.ca.gov/ (website last visited 28 1 MOTION TO PROCEED IFP STANDARD 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 3 Sheriff’s Office,

(9th Cir. 2011). “Prisoners” like Plaintiff, however, 4 “face an additional hurdle.”

In addition to requiring prisoners to “pay the full amount 5 of a filing fee,” in “increments” as provided by

(a)(3)(b), Williams v. 6 Paramo,

(9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) 7 amended section 1915 to preclude the privilege to proceed IFP: 8 . . . if [a] prisoner has, on 3 or more prior occasions, while incarcerated or 9 detained in any facility, brought an action or appeal in a court of the United 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails 11 to state a claim upon which relief can be granted, unless the prisoner is under 12 imminent danger of serious physical injury. 13

(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005) (hereinafter 15 “Andrews”). “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed 16 IFP.” Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (hereinafter 17 “Cervantes”) (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful 18 suits may entirely be barred from IFP status under the three strikes rule[.]”). The objective 19 of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation 20 in federal court.” Tierney v. Kupers,

(9th Cir. 1997). “[S]ection 21 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after 22 the statute’s effective date.”

. 23 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 24 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 25 Andrews,

n.1 (internal quotations omitted), “even if the district court 26 styles such dismissal as a denial of the prisoner’s application to file the action without 27 prepayment of the full filing fee,” O’Neal v. Price,

(9th Cir. 2008). 28 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) from 1 pursuing any other IFP action in federal court unless he can show he is facing “imminent 2 danger of serious physical injury.” See

(g); Cervantes, 493 F.3d at 1051– 3 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 4 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 5 6 APPLICATION 7 As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has 8 ascertained that it does not contain “plausible allegations” which suggest he “faced 9 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes,

1055 (quoting

(g)). 11 A court “‘may take notice of proceedings in other courts, both within and without 12 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 13 Bias v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 14

, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson Rancheria 15 Citizens Council v. Borneo, Inc.,

(9th Cir. 1992). Thus, this Court takes 16 judicial notice that Plaintiff, while incarcerated, has brought at least three prior civil actions 17 which have been dismissed on the grounds that they were frivolous, malicious, or failed to 18 state a claim upon which relief may be granted. See

(g). They are: 19 (1) Hatcher v. Aurthur, No. 3:18-cv-00491-LAB-KSC (S.D. Cal. Mar. 31, 2018) 20 (Order Denying Motion to Proceed IFP and Dismissing Civil Action as Frivolous 21 pursuant to

(e)(2)(B)(i)) (strike one); 22 (2) Hatcher v. Monahan, No. 3:18-cv-00492-CAB-KSC (S.D. Cal. June 14, 2018) 23 (Order Dismissing Civil Action for Failing to State a Claim and for Failing to 24 Prosecute) (strike two); and 25 (3) Hatcher v. Dr. Blake, No. 3:18-cv-00561-MMA-MDD (S.D. Cal. July 17, 2018) 26 (Order Dismissing Civil Action pursuant to

(e)(2), 1915A(b) 27 and for Failing to Prosecute) (strike three). 28 Accordingly, because Plaintiff has, while incarcerated, accumulated at least the three 1 || “strikes” permitted pursuant to § 1915(g), and he fails to make a “plausible allegation” that 2 faced imminent danger of serious physical injury at the time he filed his Complaint, he 3 not entitled to the privilege of proceeding IFP in this action. See Cervantes,

|| 1055; Rodriguez v. Cook,

(9th Cir. 1999) (finding that 28 U.S.C. 5 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 6 || prisoners with a history of abusing the legal system from continuing to abuse it while 7 || enjoying IFP status’); see also Franklin v. Murphy,

(9th Cir. 1984) 8 ||(“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”’). 9 10 CONCLUSION & ORDER 1] For the foregoing reasons, the Court hereby: 12 (1) DENIES Plaintiff's motion to proceed IFP (ECF No. 3) as barred by 28 13 |/U.S.C. § 1915(g); and 14 (2) DISMISSES this civil action sua sponte WITHOUT PREJUDICE for 15 || failure to prepay the $400 civil and administrative filing fees required by

|| 1914(a). The Clerk of Court is directed to mail a copy of this Order to Plaintiff at California 17 || Institution for Men, P.O. Box 3100, Chino, California. 18 The Clerk shall close the file. 19 IT IS SO ORDERED. □□ ) 20 || DATED: August 19, 2019 asl (Hohn

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