1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MELVIN JOSEPH SIMMONS, Case No.: 3:19-cv-01372-CAB-JLB CDCR #D-66671, 12 ORDER: Plaintiff, 13 v. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY

(g) UNITED STATES OF AMERICA; [ECF Doc. No. 5] 16 STATE OF CALIFORNIA; GOVERNOR 17 EDMUND G. BROWN; ALEX (2) DISMISSING CIVIL ACTION PADILLA; XAVIER BECERRA; NANC WITHOUT PREJUDICE FOR 18 R. BEEZY MICON, FAILURE TO PAY FILING FEE 19 Defendants. REQUIRED BY

(a) 20 21 Plaintiff, Melvin Joseph Simmons, a state inmate currently housed at High Desert 22 State Prison located in Susanville, California has filed a civil rights Complaint 23 (“Compl.”) pursuant to

. (ECF Doc. No. 1.) Plaintiff has not prepaid 24 the full civil filing fee required by

(a); instead, he has filed a Motion to 25 Proceed In Forma Pauperis (“IFP”) (ECF Doc. No. 5). 26 / / / 27 1 I. Motion to Proceed IFP 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 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 7 (“PLRA”) amended section 1915 to preclude the privilege to proceed IFP: 8 . . . 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 9 States that was dismissed on the grounds that it is frivolous, malicious, or 10 fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 11

12

(g). “This subdivision is commonly known as the ‘three strikes’ 13 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005) (hereafter 14 “Andrews”). 15 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 16 Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (hereafter 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 19 objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner 20 litigation in federal court.” Tierney v. Kupers,

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

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

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

, 1153 1 (9th Cir. 2008). Once a prisoner has accumulated three strikes, he is prohibited by section 2 1915(g) from pursuing any other IFP action in federal court unless he can show he is 3 facing “imminent danger of serious physical injury.” See

(g); Cervantes, 4

(noting § 1915(g)’s exception for IFP complaints which “make[] a 5 plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 6 at the time of filing.”). 7 II. Application to Plaintiff 8 As an initial matter, the Court has carefully reviewed Plaintiff’s Complaint and has 9 ascertained that it does not contain “plausible allegations” which suggest he “faced 10 ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes,

1055 (quoting

(g)). 12 A court “‘may take notice of proceedings in other courts, both within and without 13 the federal judicial system, if those proceedings have a direct relation to matters at 14 issue.’” Bias v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. 15 Medtronic, Inc.,

, 803 n.2 (9th Cir. 2002)); see also United States ex rel. 16 Robinson Rancheria Citizens Council v. Borneo, Inc.,

(9th Cir. 1992). 17 Thus, this Court takes judicial notice that Plaintiff, while incarcerated, has brought 18 at least five prior civil actions which have been dismissed on the grounds that they were 19 frivolous, malicious, or failed to state a claim upon which relief may be granted. See 28

(g). 21 They are: 22 1) Simmons v. Lamarque, et al., Civil Case No. 03-cv-04509-JW-PR (N.D. Cal. 23 July 19, 2007) (Order Dismissing Complaint for failing to state a claim) 24 (strike one); 25 2) Simmons v. Giurbino, et al., Civil Case No. 11-cv-02169-WHA (N.D. Cal. 26 June 1, 2011) (Order Dismissing Civil Action for failure to state cognizable 27 claim) (strike two); 1 3) Simmons v. Kernon, et al., Civil Case No. 16-cv-07319-LHK (N.D. Cal. July 2 25, 2017) (Order Dismissing First Amended Complaint for failure to state a 3 cognizable claim) (strike three); 4 4) Simmons v. State of California, et al. Civil Case No. 17-cv-5595-LHK (N. 5 D. Cal. Nov. 30, 2017) (Order Dismissing Complaint for failing to state a 6 claim) (strike four); 7 5) Simmons v. Brown, et al., Civil Case No. 18-cv-6890-LHK (N.D. Cal. Apr. 8 24, 2019) (Order Dismissing Complaint for failing to state a claim) (strike 9 five). 10 Accordingly, because Plaintiff has, while incarcerated, accumulated at least the 11 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,

; 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,

(9th Cir. 1984) 18 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”). 19 III. Conclusion and Order 20 For the reasons set forth above, the Court hereby: 21 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF Doc. No. 5) as barred by 22

(g); AND 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 1 (2) DISMISSES this civil action sua sponte without prejudice for failing to 2 || prepay the $400 civil and administrative filing fees required by

(a). 3 The Clerk shall close the file. 4 IT IS SO ORDERED. 5 Dated: September 20, 2019 ( é & ° Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28