Hicks v. Diaz

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA MICHAEL HICKS, Case No.: 3:20-cv-00217 CAB (BLM) CDCR #B-80852, ORDER: Plaintiff, vs. 1) DENYING MOTION TO PROCEED IN FORMA PAUPERIS 15 AS BARRED BY 28 U.S.C. § 1915(g) RALPH DIAZ, et al., [ECF No. 2] 16 Defendants.

17 AND 2) DISMISSING CIVIL ACTION 19 FOR FAILURE TO PAY FILING FEE REQUIRED BY 28 U.S.C. § 1914(a) 23 Plaintiff Michael Hicks, proceeding pro se and currently incarcerated at Richard J.

24 Donovan State Prison, has filed a civil action pursuant to 42 U.S.C. § 1983. (See Compl., ECF No. 1.) Plaintiff has not paid the filing fee required to commence a civil action; instead, he has filed a Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.)

28 / / / I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners, like Plaintiff, however, “face an additional hurdle.” Id. In addition to requiring prisoners to “pay the full amount of a filing fee,” in “increments” as provided by 28 U.S.C. Section 1915(a)(3)(b), Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended Section 1915 to preclude the privilege to proceed IFP: 9 . . . 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 States that was dismissed on the 11 grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.

14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

16 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.”

17 Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (stating that under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three strikes rule . . . .”). The objective of the PLRA is to further “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). “[S]ection 1915(g)’s cap on prior dismissed claims applies to claims dismissed both before and after the statute’s effective date.” Id. at 1311.

24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court styles such dismissal as a denial of the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

1 When courts “review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 5 F.3d 607, 615 (4th Cir. 2013)). “When . . . presented with multiple claims within a single action,” however, courts may “assess a PLRA strike only when the case as a whole is dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016)).

10 Once a prisoner has accumulated three strikes, he is prohibited by Section 1915(g) from pursuing any other IFP action in federal court unless he can show he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 (noting Section 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”).

16 B. Discussion 17 As a preliminary matter, the Court has reviewed Plaintiff’s Complaint and finds that it does not contain any “plausible allegations” to suggest that he “faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 20 U.S.C. § 1915(g)). Plaintiff alleges that on June 10, 2019, while Plaintiff was housed at Salinas Valley State Prison, fellow inmate Sanchez “discovered Plaintiff’s commitment [offenses] of rape, oral copulation and kidnapping by accessing the ‘D’ facility inmate law library computer database.” (See Compl., ECF No. 1 at 12.) Almost two months later, Plaintiff was attacked by inmate Mickler who lived in the same housing unit as Sanchez.

25 (Id. at 13.) After the attack, Mickler told Plaintiff, “Everyone knows you’re a sex offender.” (Id.) Plaintiff was placed in Administrative Segregation for his safety and was later transferred to High Desert State Prison. (Id. at 13-14.) Upon his arrival, Plaintiff was permitted to place Sanchez and Mickler on his “enemies” list. (Id. at 14.) Plaintiff filed a grievance regarding inmates’ access to sensitive information via the law library computer, but the grievance was “canceled.” (Id. at 15.) Plaintiff contends that “the unfiltered use of the Lexis/Nexis database on its inmate library computers” violates various provisions of the California Penal Code and creates a “severe risk of imminent harm to his personal safety in violation of his Eighth Amendment right[s].” (See Compl., ECF No. 1 at 10.) Based on these facts, Plaintiff has not established he “faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 8 U.S.C. § 1915(g)).

9 While Defendants typically carry the initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in some instances, the district court docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 1120. That is true here.

14 Based on the dockets of many court proceedings available on PACER,1 this Court finds that Plaintiff Michael Hicks, identified as CDCR #B-80852, while incarcerated, has had at least prisoner civil actions or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See Hicks v. Berkson, et al., No. 1:02-cv05905-AWI-/SMS (E.D. Cal. June 19, 2003) (dismissing for failure to state a claim); Hicks v. Family Healthcare, et al., No. 2:08-cv-05978-UA-FMO (C.D. Cal. Oct. 20, 2008) (dismissing action as legally and/or patently frivolous); Hicks v. Cate, et al., No. 2:08-cv-00511-SPK (E.D. Cal. Apr. 23, 2009) (dismissing for failure to state a claim). Additionally, other courts have found that these cases and several others 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias, 508 F.3d at 1225 (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)); see also United States ex rel. Robinson constitute three strikes for purposes of § 1915(g). See Hicks v. Hamkar, No. 2: 13-cv- || 1678-DAD-O at 4-6 (E.D. Cal. Mar. 25, 2015); Hicks v. Chisman, No. 3:13-cv00505-SI at || 2-3 (N.D. Cal. Apr. 4, 2013); Hicks v. Lizzaraga, et al., No. 3:15-cv-2408-H-JLB at 3 (S.D. 4 Feb. 16, 2016).

5 Accordingly, because Plaintiff has, while incarcerated, accumulated far more than ||the three “strikes” permitted by Section 1915(g), and he fails to make any plausible || allegation that he faced imminent danger of serious physical injury at the time he filed this || case, he is not entitled to the privilege of proceeding IFP. See Cervantes, 493 F.3d at 1055; || Rodriguez, 169 F.3d at 1180 (noting that 28 U.S.C. § 1915(g) “does not prevent all || prisoners from accessing the courts; it only precludes prisoners with a history of abusing || the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin ||v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“[C]ourt permission to proceed IFP is ||itself a matter of privilege and not right.’’).

14 Conclusion and Orders 15 For the reasons set forth above, the Court DENIES Plaintiff?s Motion to Proceed || IFP (ECF No. 2) as barred by 28 U.S.C. Section 1915(g), DISMISSES this civil action || based on Plaintiff's failure to pay the civil filing fee required by 28 U.S.C. Section 1914(a), || CERTIFIES that an IFP appeal from this Order would not be taken in good faith pursuant 19 28 U.S.C. Section 1915(a)(3), and DIRECTS the Clerk of the Court to close the file.

20 IT IS SO ORDERED.

21 ||Dated: June 18, 2020 € ZL Hon. Cathy Ann Bencivengo 23 United States District Judge 5 oo