1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 GARLAND JONES, Case No.: 3:19-cv-02121-CAB-MDD CDCR #F-47928, 11 ORDER: Plaintiff, 12 vs. 1) DENYING MOTION TO 13 PROCEED IN FORMA PAUPERIS

14 AS BARRED BY

(g) SGT. CANEDA; [ECF No. 2] 15 SGT. ESTAUCIO, 16 Defendants. AND

17 (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR FAILURE TO PAY FILING FEE 19 REQUIRED BY

(a) 20 21 Plaintiff, Garland Jones, currently incarcerated at Richard J. Donovan Correctional 22 Facility (“RJD”), in San Diego, California, has filed a civil rights Complaint pursuant to 23

. See Compl., ECF No. 1. 24 Plaintiff claims two RJD correctional sergeants have “harassed” him, “diminished 25 [his] ability to file legal documents,” denied him access to the legal library, “disrupted 26 [his] program,” and attempted to “undermine” his “legal actions.”

at 2‒4. He has not 27 prepaid the full civil filing fee required by

(a); instead, he has filed a 28 Motion to Proceed In Forma Pauperis (“IFP”) (ECF No. 2). 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office,

(9th Cir. 2011). Prisoners like Plaintiff, however, 5 “face an additional hurdle.”

6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in 7 “monthly installments” or “increments” as provided by

(a)(3)(b), the 8 Prison Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege 9 to proceed IFP in cases where the prisoner: 10 . . . 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 11 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 12 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 13 14

(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). “Pursuant to 16 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also 17 Andrews v. Cervantes,

(9th Cir. 2007) (hereafter “Cervantes”) 18 (under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 19 entirely be barred from IFP status under the three strikes rule[.]”). The objective of the 20 PLRA is to further “the congressional goal of reducing frivolous prisoner litigation in 21 federal court.” Tierney v. Kupers,

(9th Cir. 1997). 22 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 23 which were dismissed on the ground that they were frivolous, malicious, or failed to state 24 a claim,” Andrews,

n.1 (internal quotations omitted), “even if the 25 district court styles such dismissal as a denial of the prisoner’s application to file the 26 action without prepayment of the full filing fee.” O’Neal v. Price,

, 1153 27 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 28 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 1 central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or 2 failure to state a claim.’” El-Shaddai v. Zamora,

(9th Cir. 2016) 3 (quoting Blakely v. Wards,

(4th Cir. 2013)). “When … presented with 4 multiple claims within a single action,” however, courts may “assess a PLRA strike only 5 when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. 6 Pulido,

(9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s 7 Dep’t,

(9th Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 10 danger of serious physical injury.” See

(g); Cervantes,

- 11 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of 13 filing.”). 14 B. Discussion 15 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 16 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 17 of filing.” Cervantes,

(quoting

(g)). Instead, as 18 described above, Plaintiff seeks to sue two RJD officials based on claims that they have 19 all interfered with his ability to file and gather documentation he claims relevant to 20 unspecified complaints and other “legal matters.” See Compl., ECF No. 1 at 2‒4. These 21 claims fail to plausibly meet § 1915(g)’s exception for imminent danger. See Cervantes, 22

(plaintiff must allege to face a real, proximate and/or ongoing danger 23 at the time of filing); Prophet v. Clark, No. CV 1-08-00982-FJM,

, at 24 *1 (E.D. Cal. June 22, 2009) (finding prisoner’s access to the courts, interference with 25 legal mail, and retaliation claims insufficient to satisfy § 1915(g) exception in cases of 26 “imminent danger of serious physical injury”). 27 And while Defendants typically carry the initial burden to produce evidence 28 demonstrating a prisoner is not entitled to proceed IFP, Andrews,

, “in 1 some instances, the district court docket may be sufficient to show that a prior dismissal 2 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 3 at 1120. That is the case here. 4 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 5 No. 3:05-cv-00452-MMA-WMc,

, *2 (S.D. Cal. Jan. 22, 2009) (citing 6 United States v. Author Services,

(9th Cir. 1986)); Gerritsen v. 7 Warner Bros. Entm’t Inc.,

(C.D. Cal. 2015), and “‘may take 8 notice of proceedings in other courts, both within and without the federal judicial system, 9 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508

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

, 803 11 n.2 (9th Cir. 2002)). 12 Based on a review of its own dockets and other court proceedings available on 13 PACER, the Court finds that Plaintiff Garland Jones, identified as CDCR Inmate #F- 14 47928, while incarcerated, has had four prior civil actions dismissed on the grounds that 15 they were frivolous, malicious, or failed to state a claim upon which relief may be 16 granted. 17 They are: 18 (1) Jones v. Tolson, et al., Civil Case No. 1:15-cv-01037-JDP (E.D. Cal. Sept. 14, 2015) (Order dismissing civil action for failing to state a 19 claim pursuant to

(e)(2)(B)(ii) and § 1915A(b)(1), 20 (2)) (ECF No. 17) (strike one);

21 (2) Jones v. Tiscornia, et al., Civil Case No. 3:18-cv-00544-GPC-PCL 22 (S.D. Cal. July 30, 2018) (Order dismissing second amended complaint for failing to state a claims pursuant to

(e)(2)(B)(ii) 23 (ECF No. 11) (strike two); 24 (3) Jones v. Mailroom Officials at CSATF, et al., Civil Case No. 1:17- 25 cv-00281-LJO-SKO (E.D. Cal. Oct. 31, 2018) (Findings and 26 Recommendations [“F&R”] to dismiss second amended complaint for failure/inability to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), 27 (2) and § 1915(e)(2)(B)(ii)) (ECF No. 22); (E.D. Cal. Jan. 9, 2019 Order 28 adopting F&R) (ECF No. 24) (strike three); and 1 (4) Jones v. Cal. Corr. Healthcare Servs., et al., Civil Case No. 2:17- cv-00738-WBS-DB (E.D. Cal. March 21, 2019) (Order & F&R to 2 dismiss second amended complaint for failing to state a claim pursuant 3 to 28 U.S.C. § 1915A(b)(1) & (2)) (ECF No. 30); (April 26, 2019 Order adopting F&R and dismissing second amended complaint without leave 4 to amend) (ECF No. 32) (strike four). 5 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 6 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he 7 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 8 not entitled to the privilege of proceeding IFP in this action. See Cervantes,

1055; Rodriguez, 169 F.3d at 1180 (finding that

(g) “does not prevent 10 all prisoners from accessing the courts; it only precludes prisoners with a history of 11 abusing the legal system from continuing to abuse it while enjoying IFP status”); see also 12 Franklin v. Murphy,

(9th Cir. 1984) (“[C]ourt permission to proceed 13 IFP is itself a matter of privilege and not right.”).1 14 II. Conclusion and Orders 15 For the reasons set forth above, the Court: 16 (1) DENIES Plaintiff’s Motion to Proceed IFP (ECF No. 2) as barred by 28

(g); 18 (2) DISMISSES this civil action sua sponte without prejudice for failing to 19 prepay the $400 civil and administrative filing fees required by

(a); 20 (3) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 21 to

(a)(3); and 22 23 24 1 In fact, Plaintiff has been denied leave to proceed IFP pursuant to

(g) in 25 this Court on six previous occasions. See Jones v. Blahnik, et al., S.D. Cal. Civil Case No. 3:18-cv-02262-GPC-BLM (ECF No. 11); Jones v. Elizaldie, S.D. Cal. Civil Case No. 3:18- 26 cv-02734-JLS-MDD (ECF No. 4); Jones v. Elizaldie, et al., S.D. Cal. Civil Case No. 3:19- 27 cv-00296-BAS-AGS (ECF No. 4); Jones v. Campos, et al., S.D. Cal. Civil Case No. 3:19- cv-01340-LAB (JLB) (ECF No. 4), and Jones v. Elizalde, et al., S.D. Cal. Civil Case No. 28 1 (4) DIRECTS the Clerk of the Court to close the file. 2 IT IS SO ORDERED. 3 ||Dated: January 15, 2020 € ZL 4 Hon. Cathy Ann Bencivengo 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6