1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 KENYON DARRELL BROWN, ) Case No. 5:21-cv-01441-RGK-JDE ) 12 Plaintiff, ) ) ORDER DISMISSING ACTION 13 v. ) PURSUANT TO

(g) ) 14 SAN BERNARDINO POLICE ) ) ARRESTING OFFICERS FOR ) 15 CASE#FSB1600204 2016, et al., ) ) 16 Defendants. ) ) 17

18 On August 19, 2021, Plaintiff Kenyon Darrell Brown (“Plaintiff’), a 19 California state prisoner, proceeding pro se and seeking leave to proceed in 20 forma pauperis (“IFP”), filed a civil rights Complaint (Dkt. 1 “Complaint”) 21 under

against “Arresting Officers” in San Bernardino County 22 Superior Court Case No. FSB160024, Officer Martinez, the deputy district 23 attorney, and sheriff’s deputies assigned to B Block at the Glen Helen 24 Rehabilitation Center. Plaintiff seeks to challenge his 2016 arrest and seeks 25 damages, alleging he was falsely arrested, subjected to excessive force, and 26 falsely imprisoned based on false testimony. Complaint at 2-6. 27 On September 29, 2021, the assigned magistrate judge issued an Order to 28 Show Cause directing Plaintiff to show cause why the action should not be 1 dismissed pursuant to

(g). Dkt. 4 (“OSC”). On October 12, 2 2021, Plaintiff filed a one-page Response to the OSC. Dkt. 5 (“Response”). 3 Pursuant to

(g), a prisoner is prohibited from 4 “bring[ing] a civil action or appeal” IFP if the prisoner: 5 has, on 3 or more prior occasions, while incarcerated or detained 6 in any facility, brought an action or appeal in a court of the United 7 States that was dismissed on the grounds that it is frivolous, 8 malicious, or fails to state a claim upon which relief may be 9 granted, unless the prisoner is under imminent danger of serious 10 physical injury. 11 Section 1915(g) “is commonly known as the ‘three strikes’ provision. ‘Strikes’ 12 are prior cases or appeals, brought while the plaintiff was a prisoner, which 13 were dismissed ‘on the ground that[they were] frivolous, malicious, or fail[] to 14 state a claim . . . .” Andrews v. King,

, 1116 n.1 (9th Cir. 2005) 15 (as amended) (first two alterations in original). Section 1915(g) provides a 16 narrow exception permitting a prisoner who has had three prior “strikes” but 17 who is in “imminent danger of serious physical injury” to proceed despite the 18 strikes.

(g); see also Lopez v. Smith,

(9th 19 Cir. 2000) (en banc). The danger must exist at the time the prisoner filed the 20 complaint, not at some earlier or later time. Andrews v. Cervantes,

(9th Cir. 2007) (as amended). 22 Courts may raise Section 1915(g) sua sponte and dismiss the action after 23 providing the plaintiff with an opportunity to be heard. See Andrews,

at 1120; see also Strope v. Cummings,

(10th Cir. 2011) 25 (courts “may raise the issue of strikes sua sponte”); Hernandez v. Ventura 26 Cty.,

, at *2 (C.D. Cal. Nov. 16, 2010) (“Courts may, sua 27 sponte, dismiss an action that is barred by Section 1915(g), but must notify the 28 prisoner/litigant of the strikes it considers to support such a dismissal, and 1 allow the prisoner an opportunity to be heard on the matter before dismissing 2 the case.”), report and recommendation adopted by

(C.D. 3 Cal. Dec. 15, 2010). Once the Court notifies a plaintiff that his case may be 4 subject to dismissal under Section 1915(g), the plaintiff bears the ultimate 5 burden of persuading the Court that Section 1915(g) does not apply. Andrews, 6

. “A dismissal under Section 1915(g) is without prejudice to a 7 plaintiff refiling his civil rights complaint after prepayment of the full filing 8 fee.” Hernandez,

, at *2. 9 Here, Plaintiff has filed numerous actions in this Court. He concedes 10 that he has filed four prior lawsuits in federal court while a prisoner, 11 referencing cases in the Eastern and Central Districts of California, namely, 12 Brown v. North Kern State Prison, et al., Case No. 1:20-cv-01396-SKO (E.D. 13 Cal.), Brown v. West Valley Detention Center, et al., Case No. 5:21-cv-01252- 14 RGK-JDE (C.D. Cal.), Brown v. Anaya, et al., Case No. 5:21-1302-RGK-JDE 15 (C.D. Cal.), and Brown v. CDCR Director, et al., Case No. 1:21-cv-01186- 16 SKO (E.D. Cal.). Complaint at 1. In addition to the cases identified, Plaintiff 17 has filed at least three other civil rights actions in this Court in 2021 alone: 18 Brown v. City of Rialto, et al., Case No. 5:21-cv-00565-RGK-JDE, Brown v. 19 Mental Health Court, et al., Case No. 5:21-00742-RGK-JDE, and Brown v. 20 Rialto Police Officer Jason Breen, Case No. 5:21-cv-00993-RGK-JDE. 21 As noted in the OSC, at least three of Plaintiff’s prior civil rights actions 22 filed while he was incarcerated were dismissed as frivolous, malicious, or for 23 failure to state a claim, including the following: 24 1. Brown v. City of Rialto, et al., Case No. 5:21-cv-00565-RGK-JDE 25 (dismissed for failure to state a claim upon which relief may be granted); 26 2. Brown v. Rialto Police Officer Jason Breen, Case No. 5:21-cv-00993- 27 RGK-JDE (dismissed for failure to state a claim upon which relief may be 28 granted and res judicata); and 1 3. Brown v. Anaya et al., Case No. 5:21-1302-RGK-JDE (dismissed as 2 || frivolous and for failure to state a claim upon which relief may be granted). 3 As such, the OSC provided Plaintiff notice that it appeared the instant 4 action is subject to dismissal under

(g) and provided Plaintiff 5 opportunity to be heard. In his one-page Response, Plaintiff did not contest 6 three prior actions were dismissed for failing to state a claim upon which 7 |\relief may be granted and/or being frivolous, and did not assert that he is 8 |}under imminent danger of serious physical injury; rather, Plaintiff states that 9 || he believes his claims are meritorious and notes he had been permitted to 10 || proceed in forma pauperis in two cases in another district. See Response at 1. 11 The Court finds that Plaintiff has, on at least three prior occasions, filed 12 || civil actions under

that have been dismissed as frivolous, 13 malicious, or for failure to state a claim, and further finds that Plaintiff has not 14 ||shown he is under imminent danger of serious physical injury. As a result, this 15 action must be dismissed without prejudice. 16 Accordingly, IT IS HEREBY ORDERED THAT: 17 1. Plaintiff's Request to Proceed IFP (Dkt. 2) is DENIED; and 18 2. Plaintiffs Complaint is hereby DISMISSED without prejudice and 19 Judgment shall be entered accordingly. 20 J ke 21 ||Dated: October 19,2021 “O 09 R. GARY KLAUSNER United States District Judge 23 24 Presented py

26 D. EARLY 57 ited States Magistrate Judge 28