1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ERNEST NAPPER, JR., Case No.: 21-CV-359 JLS (BLM)

12 Plaintiff, ORDER: (1) DENYING MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT 14 PURSUANT TO

(g) 15 SAN DIEGO COUNTY SHERIFF’S AND (2) DENYING MOTION TO DEPT.; GEORGE BAILEY APPOINT COUNSEL 16 DETENTION FACILITY; and 17 CORPORAL BADGE #3142, (ECF Nos. 2, 3) 18 Defendants. 19

20 Plaintiff Ernest Napper, Jr. (“Plaintiff” or “Napper”), currently incarcerated at 21 George Baily Detention Facility (“GBDF”), has filed a pro se civil rights action pursuant 22

. See ECF No. 1 (“Compl.”). Plaintiff did not prepay the civil filing fee 23 required by

(a) at the time of filing. He has instead filed a Motion to 24 Proceed in Forma Pauperis (“IFP”) pursuant to

(a). See ECF No. 2 (“IFP 25 Mot.”). Plaintiff has also filed a Motion to Appoint Counsel. See ECF No. 3 (“Counsel 26 Mot.”). 27 / / / 28 / / / 1 MOTION TO PROCEED IN FORMA PAUPERIS 2 I. Legal Standard 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa Cty. 4 Sheriff’s Office,

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

In addition to requiring prisoners to “pay the full amount of a 6 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 7 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 8 preclude the privilege to proceed IFP in cases where the prisoner 9 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 10 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 11 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12

13

(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). 15 “Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” 16 Id.; see also Andrews v. Cervantes,

(9th Cir. 2007) (hereafter 17 “Cervantes”) (stating that, under the PLRA, “[p]risoners who have repeatedly brought 18 unsuccessful suits may entirely be barred from IFP status under the three strikes rule[.]”). 19 The objective of the PLRA is to further “the congressional goal of reducing frivolous 20 prisoner litigation in federal court.” Tierney v. Kupers,

(9th Cir. 21 1997). 22 II. Analysis 23 A. Whether Plaintiff Has Three Strikes 24 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 25 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 26 Andrews,

n.1 (internal quotations omitted), “even if the district court 27 styles such dismissal as a denial of the prisoner’s application to file the action without 28 prepayment of the full filing fee,” O’Neal v. Price,

(9th Cir. 2008). 1 When courts “review a dismissal to determine whether it counts as a strike, the style of the 2 dismissal or the procedural posture is immaterial. Instead, the central question is whether 3 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 4 Shaddai v. Zamora,

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

(4th Cir. 2013)). “When . . . presented with multiple claims within a single 6 action,” however, courts may “assess a PLRA strike only when the case as a whole is 7 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido,

, 1152 8 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t,

(9th 9 Cir. 2016)). 10 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 11 No. 3:05-cv-00452–MMA-WMc,

, at *2 (S.D. Cal. Jan. 22, 2009) (citing 12 United States v. Author Servs.,

(9th Cir. 1986)); Gerritsen v. Warner 13 Bros. Entm’t Inc.,

(C.D. Cal. 2015), and “‘may take notice of 14 proceedings in other courts, both within and without the federal judicial system, if those 15 proceedings have a direct relation to matters at issue,’” Bias v. Moynihan,

, 16 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc.,

, 803 n.2 (9th Cir. 17 2002)). Based on a review of its own dockets and those of other courts available on 18 PACER, this Court finds that Plaintiff has had three prior prisoner civil actions or appeals 19 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 20 which relief may be granted. They are: 21 (1) Napper v. Wong, Civil Case No. 2:08-cv-03826-UA-AN (C.D. Cal., West. Div.), 22 ECF No. 2: July 1, 2008 order denying IFP status and dismissing case as “frivolous” and 23 for “failure to state a claim on which relief can be granted” pursuant to 28 U.S.C. 24 §§ 1915(e)(2)(A), (B)(i)–(iii) (strike one); 25 (2) Napper v. Wong, Civil Case No. 2:09-cv-03446-UA-AN (C.D. Cal., West. Div.), 26 ECF No. 2: July 2, 2009 order denying IFP status and dismissing case as “frivolous” and 27 for “failure to state a claim upon which relief may be granted” pursuant to 28 U.S.C. 28 §§ 1915(e)(2)(A), (B)(i)–(iii) (strike two); and 1 (3) Napper v. Haws, Civil Case No. 2:09-cv-04063-UA-AN (C.D. Cal., West. Div.), 2 ECF No. 3: August 19, 2009 order dismissing case as “frivolous” and “for failure to state 3 a claim upon which relief may be granted” pursuant to

(e)(2)(A), (B)(i)– 4 (iii) (strike three). 5 B. Whether Plaintiff Faces Imminent Danger of Serious Physical Injury 6 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 7 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 8 danger of serious physical injury.” See

(g); Cervantes, 493 F.3d at 1051– 9 52 (noting § 1915(g)’s exception for IFP complaints that “make[] a plausible allegation 10 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 11 The Court has reviewed Plaintiff’s Complaint and concludes that it contains no “plausible 12 allegations” to suggest Napper faced “‘imminent danger of serious physical injury’ at the 13 time of filing.” Cervantes,

(quoting

(g)). 14 In his Complaint, Plaintiff alleges that Defendants have failed to take adequate 15 precautions against contamination when distributing food to inmates during the COVID- 16 19 outbreak. See Compl. at 4–5. He contends that jail staff are not changing their gloves 17 often enough when distributing food and that the food is stored in a manner that leaves it 18 susceptible to spoilage and pests.

at 5–6. Plaintiff also claims that, while jail officials 19 provide “K-95” masks for detainees to use during court appearances, inmates are not given 20 “K-95” masks for use inside the jail.

. Plaintiff concedes detainees are provided 21 with cloth masks inside the jail but argues that cloth masks are insufficient protection 22 against COVID-19.

23 Plaintiff’s allegations do not rise to the level of “imminent danger of serious physical 24 injury.” See Cervantes,

; see also Anderson v. Doe, No. 20-cv-1620- 25 DAD-SAB-PC,

, at *2 (E.D. Cal. Dec. 16, 2020) (concluding a plaintiff 26 who raised claims related to COVID-19 precautions in jail (or lack thereof) was not in 27 imminent danger of serious physical injury at the time he filed the complaint because he 28 was not a high risk detainee and the “jail [was] employing efforts to prevent the spread of 1 the disease”). Thus, the imminent danger exception to section 1915(g)’s three-strikes bar 2 does not apply here. 3 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 4 “strikes” as defined by section 1915(g), and because he fails to make a “plausible 5 allegation” that he faced imminent danger of serious physical injury at the time he filed his 6 Complaint, he is not entitled to the privilege of proceeding IFP in this action. See 7 Cervantes,

; Rodriguez v. Cook,

(9th Cir. 1999) 8 (finding that

(g) “does not prevent all prisoners from accessing the courts; 9 it only precludes prisoners with a history of abusing the legal system from continuing to 10 abuse it while enjoying IFP status”); see also Franklin v. Murphy,

, 1231 11 (9th Cir. 1984) (stating that “court permission to proceed IFP is itself a matter of privilege 12 and not right”). 13 MOTION FOR APPOINTMENT OF COUNSEL 14 Plaintiff has also filed a Motion for Appointment of Counsel. See generally Counsel 15 Mot. However, a motion to appoint counsel pursuant to

(e)(1) necessarily 16 depends upon the plaintiff’s ability to proceed IFP. See

(e)(1) (“The court 17 may request an attorney to represent any person unable to afford counsel.”). In other words, 18 in order to be successful, such a motion requires that the plaintiff has been determined 19 eligible to proceed IFP due to indigence; further, whether to grant a motion to appoint 20 counsel is within “the sound discretion of the trial court[,] and [such a motion] is granted 21 only in exceptional circumstances.” Agyeman v. Corr. Corp. of Am.,

, 1103 22 (9th Cir. 2004). Because Plaintiff is not entitled to proceed IFP pursuant to 28 U.S.C. 23 § 1915(g) and additionally has failed to allege the presence of exceptional circumstances, 24 he also is not entitled to the appointment of counsel pursuant to

(e)(1). 25 Therefore, the Court DENIES Plaintiff’s Counsel Motion. 26 / / / 27 / / / 28 / / / I CONCLUSION 2 In light of the foregoing, the Court: 3 1. DENIES Plaintiff's Motion to Proceed IFP pursuant to

(g) 4 || (ECF No. 2); 5 2. DISMISSES this civil action sua sponte WITHOUT PREJUDICE for 6 failing to prepay the $402 civil and administrative filing fees required by 28 U.S.C. 7 1914(a); and 8 3. DENIES Plaintiff's Motion to Appoint Counsel (ECF No. 3). 9 The Clerk of Court SHALL CLOSE the file. 10 IT IS SO ORDERED. 11 || Dated: June 14, 2021 . tt 12 pee Janis L. Sammartino B United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6