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7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA

10 BRANDON ALEXANDER FAVOR, Case No.: 20-cv-00396-BAS-LL 11 CDCR #G-60488, ORDER: 12 Plaintiff, (1) DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AS BARRED BY

ETTA MAE GRAY; DISTRICT 1915(g) [ECF No. 4]; ATTORNEY; MARION SUGE 15 KNIGHT; BRANDON FAVOR LLP, AND IMC (1989), 16 (2) DISMISSING ACTION WITHOUT Defendants. PREJUDICE FOR FAILURE TO 17 PAY FILING FEE REQUIRED BY

(a) 18 19 Plaintiff, Brandon Alexander Favor, currently incarcerated at the California 20 Correctional Institution located in Tehachapi, California, has filed a civil rights Complaint 21 pursuant to

. (See Compl., ECF No. 1.) He has not prepaid the full civil 22 filing fee required by

(a); instead, he has filed a Motion to Proceed In 23 Forma Pauperis (“IFP”). (ECF No. 4.) In addition, Plaintiff has filed a Motion to Appoint 24 Counsel. (ECF No. 2.) 25 I. MOTION TO PROCEED IFP 26 A. Standard of Review 27 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 28 Sheriff’s Office,

(9th Cir. 2011). Prisoners like Plaintiff, however, “face 1 an additional hurdle.”

In addition to requiring prisoners to “pay the full amount of a 2 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 3 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended § 1915 to preclude 4 the privilege to proceed IFP in cases where the prisoner: 5 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 6 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 7 danger of serious physical injury. 8

(g). “This subdivision is commonly known as the ‘three strikes’ 9 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). “Pursuant to 10 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 11 v. Cervantes,

(9th Cir. 2007) (hereafter “Cervantes”) (under the 12 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 13 from IFP status under the three strikes rule”). The objective of this PLRA provision is to 14 further “the congressional goal of reducing frivolous prisoner litigation in federal court.” 15 Tierney v. Kupers,

(9th Cir. 1997). 16 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 17 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 18 Andrews,

n.1 (internal quotations omitted), “even if the district court 19 styles such dismissal as a denial of the prisoner’s application to file the action without 20 prepayment of the full filing fee.” O’Neal v. Price,

(9th Cir. 2008). 21 When courts “review a dismissal to determine whether it counts as a strike, the style of the 22 dismissal or the procedural posture is immaterial. Instead, the central question is whether 23 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 24 Shaddai v. Zamora,

(9th Cir. 2016) (quoting Blakely v. Wards, 738

(4th Cir. 2013)). “When presented with multiple claims within a single 26 action,” however, courts may “assess a PLRA strike only when the case as a whole is 27 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido,

, 1152 28 1 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t,

(9th 2 Cir. 2016)). 3 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 4 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 5 danger of serious physical injury.” See

(g); Cervantes, 493 F.3d at 1051– 6 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 7 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). 8 B. Discussion 9 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 10 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 11 of filing.” Cervantes,

(quoting

(g)). And while 12 Defendants typically carry the initial burden to produce evidence demonstrating a prisoner 13 is not entitled to proceed IFP, “in some instances, the district court docket may be sufficient 14 to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and 15 therefore counts as a strike.” Andrews, 398 F.3d at 1119–20. That is the case here. 16 A court may take judicial notice of its own records, see Molus v. Swan, Case No. 17 3:05-cv-00452-MMA-WMc,

, *2 (S.D. Cal. Jan. 22, 2009) (citing United 18 States v. Author Services,

(9th Cir. 1986)); Gerritsen v. Warner Bros. 19 Entm’t Inc.,

(C.D. Cal. 2015), and “‘may take notice of 20 proceedings in other courts, both within and without the federal judicial system, if those 21 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan,

, 22 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,

, 803 n.2 (9th Cir. 23 2002)). 24 Based on a review of its own docket and other court proceedings available on 25 PACER, the Court finds that Plaintiff Brandon Alexander Favor, identified as CDCR 26 Inmate #G-60488, while incarcerated, has had more than three1 prior civil actions 27 1 Plaintiff has filed sixty-seven (67) civil rights actions beginning in 2015. See www.pacer.gov (website 28 1 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 2 which relief may be granted: 3 (1) Favor v. Stephanie Fair, Case No. 2:15-cv-05834-JGB-JEM (C.D. Cal. Aug. 4 10, 2015) (order denying request to proceed IFP, dismissing case as frivolous, 5 malicious, or for failing to state a claim, and indicating that dismissal “may 6 constitute a strike” pursuant to

(g)) (ECF No. 4); 7 (2) Favor, et al. v. Slaveowners, Case No. 2:15-cv-05839-JGB- JEM (C.D. Cal. 8 Aug. 10, 2015) (order denying request to proceed IFP, dismissing case as 9 frivolous, malicious, or for failing to state a claim, denying leave to amend as 10 futile, and indicating that dismissal “may constitute a strike” pursuant to 28

(g)) (ECF No. 4); 12 (3) Favor v. Slavemasters, Case No. 2:15-cv-5840-JGB-JEM (C.D. Cal. Aug. 10, 13 2015) (order denying request to proceed IFP, dismissing case as frivolous, 14 malicious, or for failing to state a claim, denying leave to amend as futile, and 15 indicating that dismissal “may constitute a strike” pursuant to 28 U.S.C. 16 § 1915(g)) (ECF No. 4); and 17 (4) Favor v. Los Angeles District Attorney, et al., Case No. 2:15-cv-05875 (C.D. 18 Cal. Aug. 10, 2015) (order denying request to proceed IFP, dismissing case as 19 frivolous, malicious, or for failing to state a claim, denying leave to amend as 20 futile, and indicating that dismissal “may constitute a strike” pursuant to 28

(g)) (ECF No. 4). 22 Accordingly, because Plaintiff has, while incarcerated, accumulated more than three 23 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 24 imminent danger of serious physical injury at the time he filed his Complaint, he is not 25 entitled to the privilege of proceeding IFP in this action. See Cervantes,

; 26 Rodriguez v. Cook,

(9th Cir. 1999) (finding that

(g) 27 “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 28 a history of abusing the legal system from continuing to abuse it while enjoying IFP 1 status”); see also Franklin v. Murphy,

(9th Cir. 1984) (‘[C]ourt 2 || permission to proceed IFP is itself a matter of privilege and not right.’’). 3 CONCLUSION AND ORDERS 4 For the reasons set forth above, the Court: 5 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 4) as barred by 28 6 || U.S.C. § 1915(g); 7 (2) DISMISSES WITHOUT PREJUDICE this action sua sponte for failing to 8 || prepay the $400 civil and administrative filing fees required by

(a); 9 (3) DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 2) as moot; 10 (4) CERTIFIES that an IFP appeal from this Order would be frivolous pursuant 11

(a)(3); and 12 (5) DIRECTS the Clerk of the Court to close the file. 13 IT IS SO ORDERED. 14 / . 15 || DATED: April 22, 2020 (pil A (Asha 6 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 5.