1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL DEWAYNE ALLEN, Case No. 20cv2192-MMA (DEB)

12 Plaintiff, ORDER: 13 vs. (1) DENYING MOTION TO 14 PROCEED IFP AS BARRED BY C.O. QUILLEN, et al., 15

(g); Defendants. 16 (2) OVERRULING OBJECTION 17 TO PRIOR DISMISSAL; and

18 (3) DISMISSING CIVIL ACTION 19 FOR FAILURE TO PAY FILING FEES REQUIRED BY 20

(a) 21 22 On November 9, 2020, Plaintiff Michael Dewayne Allen, while incarcerated at the 23 Richard J. Donovan Correctional Facility (“RJD”) in San Diego, California, and 24 proceeding pro se, filed a civil rights Complaint pursuant to

alleging 25 RJD Correctional Officer Quillen planted a knife in his property to subject him to 26 unfounded disciplinary action. See Doc. No. 1. On November 17, 2020, the Court 27 dismissed this action without prejudice because Plaintiff had neither paid the filing fee 28 nor submitted a motion to proceed in forma pauperis (“IFP”). See Doc. No. 3. He has 1 now filed an IFP motion without the required certified copy of his inmate trust account 2 statement. See Doc. No. 4. He has also filed an Objection to the November 17, 2020 3 Order of dismissal, objecting that dismissal was improper because there are currently 4 delays at RJD to obtain the inmate trust account statements necessary to support an IFP 5 motion. See Doc. No. 6. 6 I.

(g)’s “Three Strikes” Bar 7 A. Standard of Review 8 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 9 Sheriff’s Office,

(9th Cir. 2011). Prisoners like Plaintiff, however, 10 “face an additional hurdle.”

In addition to requiring prisoners to “pay the full amount 11 of a filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 12 § 1915(a)(3)(b), Bruce v. Samuels,

, 84 (2016); Williams v. Paramo,

1182, 1185 (9th Cir. 2015), the Prison Litigation Reform Act (“PLRA”) amended section 14 1915 to preclude the privilege to proceed IFP: 15 . . . 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 16 States that was dismissed on the grounds that it is frivolous, malicious, or fails 17 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 18 19

(g). “This subdivision is commonly known as the ‘three strikes’ 20 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). 21 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 22 Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (stating that 23 under the PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may 24 entirely be barred from IFP status under the three strikes rule[.]”). “[S]ection 1915(g)’s 25 cap on prior dismissed claims applies to claims dismissed both before and after the 26 statute’s effective date.” Tierney v. Kupers,

(9th Cir. 1997). 27 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, 28 which were dismissed on the ground that (they were) frivolous, malicious, or fail( ) to 1 state a claim,” Andrews,

n.1 (internal quotation marks omitted), “even if 2 the district court styles such dismissal as a denial of the prisoner’s application to file the 3 action without prepayment of the full filing fee.” O’Neal v. Price,

, 1153 4 (9th Cir. 2008); see also El-Shaddai v. Zamora,

(9th Cir. 2016) 5 (noting that when the court “review[s] a dismissal to determine whether it counts as a 6 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the 7 central question is whether the dismissal rang the PLRA bells of frivolous, malicious, or 8 failure to state a claim.”) (internal quotation marks omitted). 9 Once a prisoner has accumulated three strikes, he is prohibited by section 1915(g) 10 from pursuing any other IFP civil action or appeal in federal court unless he alleges he is 11 facing “imminent danger of serious physical injury.” See

(g); 12 Cervantes,

(noting § 1915(g)’s exception for IFP complaints which 13 “make[] a plausible allegation that the prisoner faced ‘imminent danger of serious 14 physical injury’ at the time of filing.”). 15 B. Discussion 16 The Court has reviewed Plaintiff’s Complaint and finds it does not contain any 17 “plausible allegation” which suggests he “faced ‘imminent danger of serious physical 18 injury’ at the time of filing.” Cervantes,

. Instead, Plaintiff claims that 19 on July 21, 2017, a Correctional Officer planted a knife in his property in order to subject 20 him to fabricated disciplinary charges. See Doc. No. 1 at 3. But § 1915(g)’s “imminent 21 danger” exception cannot be triggered solely by complaints of past harm. Cervantes, 493 22 F.3d at 1053. Nor may it be based on “overly speculative,” “fanciful,” or “conclusory 23 assertions.” Id. at 1057 n.11. 24 Defendants typically carry the initial burden to produce evidence demonstrating a 25 prisoner is not entitled to proceed IFP, Andrews,

, but “in some 26 instances, the district court docket may be sufficient to show that a prior dismissal 27 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. 28 at 1120. That is the case here. 1 Based on a review of its own dockets and other court proceedings available on 2 PACER,1 the Court finds that Plaintiff Michael Dewayne Allen, identified as CDCR 3 Inmate #T-55834, has had three prior prisoner civil actions dismissed on the grounds that 4 they were frivolous, malicious, or failed to state a claim upon which relief may be 5 granted. 6 They are: 7 1) Allen v. Social Security Administration, Civil Case No. 11cv04253 UAE (C.D. Cal. June 22, 2011) (Order Denying Filing of Complaint without 8 prepayment of full filing fee finding Complaint was frivolous, malicious, or 9 failed to state a claim upon which relief may be granted) (Doc. No. 2) (strike one); 10

11 2) Allen v. CSP – Los Angeles Count, et al., Civil Case No. 12cv08338 DMG E (C.D. Cal. Dec. 12, 2012) (Order Dismissing Complaint for failing to 12 state a claim) (DOC. No. 7); (C.D. Cal. May 1, 2013) (Order Dismissing 13 Action for failing to file amended pleading) (DOC. No. 12) (strike two);

14 3) Allen v. Masemeno, et al., Civil Case No. 12cv09981-DMG-E (C.D. 15 Cal. Nov. 26, 2013) (Order Dismissing First Amended Complaint for failing to state a claim) (DOC. No. 15) (Feb. 20, 2014) (Order Dismissing Action for 16 failing to file amended pleading) (DOC. No. 19) (strike three) 17 18 Therefore, because Plaintiff has, while incarcerated, accumulated three “strikes” 19 pursuant to § 1915(g), and he fails to make a plausible allegation that he faced imminent 20 danger of serious physical injury at the time he filed his Complaint, he is not entitled to 21 the privilege of proceeding IFP in this action. See Cervantes,

; 22 Rodriguez v. Cook,

(9th Cir. 1999) (finding that 28 U.S.C. 23 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 24 25 1 The Court may take judicial notice of its own records, see Molus v. Swan, Civil Case No. 05cv0452– 26 MMA (WMc),

, *2 (S.D. Cal. Jan. 22, 2009); Gerritsen v. Warner Bros. Entm’t Inc.,

(C.D. Cal. 2015), and “‘notice of proceedings in other courts, both within and 27 without the federal judicial system, if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan,

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

, 803 28 1 || prisoners with a history of abusing the legal system from continuing to abuse it while 2 || enjoying IFP status.”). 3 Finally, Plaintiff's Objection to the prior Order of dismissal on the basis there are 4 ||delays at RJD to obtain necessary documentation to support an IFP application is 5 || overruled as moot. 6 Conclusion and Orders 7 For the reasons discussed, the Court: 8 1) DENIES Plaintiff's Motion to Proceed IFP (Doc. No. 4) as barred by 28 9 ||U.S.C. § 1915(g); 10 2) DISMISSES this civil action without prejudice for failure to pay the civil 11 || filing fee required by

(a); 12 3) CERTIFIES that an IFP appeal from this Order would be frivolous and 13 || would not be taken in good faith pursuant to

(a)(3); 14 4) OVERRULES Plaintiffs Objection to the prior Order of dismissal (Doc. 15 || No. 6), and 16 5) DIRECTS the Clerk of Court to enter a final judgment and close the file. 17 IT IS SO ORDERED. 18 || DATE: December 7, 2020 WW, f VT _ / Vf 19 HON. MICHAEL M. ANELLO 0 United States District Judge 21 22 23 24 25 26 27 28 5