1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAYNE ELIJAH JONES, Case No.: 23-CV-1799 JLS (AHG)

12 Plaintiff, ORDER DENYING MOTION TO 13 vs. PROCEED IN FORMA PAUPERIS AND DISMISSING COMPLAINT 14 PURSUANT TO 15 ELON MUSK, TESLA CO., SPACE X

(g) INC., et al., 16 Defendants. (ECF No. 3) 17 18

19 Presently before the Court is Plaintiff Wayne Elijah Jones’s Motion to Proceed In 20 Forma Pauperis (“Mot.,” ECF No. 3). On September 22, 2023, Plaintiff, currently 21 incarcerated at R.J. Donovan Correctional Facility (“RJD”) and proceeding pro se, filed a 22 civil rights action pursuant to

. See ECF No. 1. On September 29, the 23 Court dismissed the action because Plaintiff did not prepay the civil filing fee required by 24

(a) at the time of filing. See ECF No. 2. The Court notified Plaintiff that 25 to have his case reopened, he must satisfy the filing fee requirement by paying the fee or 26 submitting a properly supported motion to proceed in forma pauperis (“IFP”) pursuant to 27

(a).

. On January 18, 2024, Plaintiff filed the instant Motion. For 28 the reasons that follow, the Court DENIES the Motion. 1 LEGAL STANDARD 2 All parties instituting any civil action, suit, or proceeding in a district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 4 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 5 of $55. See

(a) (Judicial Conference Schedule of Fees, District Court 6 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s 7 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 8

(a). See Andrews v. Cervantes,

(9th Cir. 2007); 9 Rodriguez v. Cook,

(9th Cir. 1999). 10 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 11 amended

to preclude the privilege to proceed IFP when: 12 [a] prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 13 of the United States that was dismissed on the grounds that it is 14 frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of 15 serious physical injury. 16 17

(g). “This subdivision is commonly known as the ‘three strikes’ 18 provision.” Andrews v. King,

, 1116 n.1 (9th Cir. 2005). 19 Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 20 pursuing any other IFP action in federal court unless he can show he is facing “imminent 21 danger of serious physical injury.” See

(g); Cervantes,

. 22 “‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which were 23 dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim,” 24 King,

n.1 (alterations in original), “even if the district court styles such 25 dismissal as a denial of the prisoner’s application to file the action without prepayment of 26 the full filing fee,” O’Neal v. Price,

(9th Cir. 2008). When courts 27 “review a dismissal to determine whether it counts as a strike, the style of the dismissal or 28 the procedural posture is immaterial. Instead, the central question is whether the dismissal 1 ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. 2 Zamora,

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

, 3 615 (4th Cir. 2013)). 4 While defendants typically carry the initial burden to produce evidence 5 demonstrating a prisoner is not entitled to proceed IFP, “in some instances, the district 6 court docket may be sufficient to show that a prior dismissal satisfies at least one of the 7 criteria under § 1915(g) and therefore counts as a strike.” King,

. 8 DISCUSSION 9 I. Prior “Strikes” 10 A court “may take notice of proceedings in other courts, both within and without the 11 federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias 12 v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 13

, 803 n.2 (9th Cir. 2002)). Based on a review of its own dockets, the Court 14 finds that Plaintiff, currently identified as California Department of Corrections and 15 Rehabilitation (“CDCR”) Inmate #BU-7712, while incarcerated, has had at least four prior 16 civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state 17 a claim upon which relief may be granted. 18 They are: 19 (1) Jones v. Peng, et al., No. 21-cv-1912-MMA-BLM (S.D. Cal. May 12, 2022) 20 (Order Granting Motion to Proceed IFP, Dismissing Complaint with leave to amend for 21 failure to state a claim pursuant to

(e)(2)(B) & 1915A(b) (ECF No. 11)) 22 (May 12, 2022 Order dismissing action (ECF No. 12)) (strike one); 23 (2) Jones v. Peng, et al., No. 22-55543 (9th Cir. Nov. 17, 2022) (Order Revoking 24 IFP and Dismissing Appeal as Frivolous (Dkt No. 24)) (strike two); 25 (3) Jones v. Cal. Gov’t Claims Program, et al., No. 23-cv-1256-WQH-DDL 26 (S.D. Cal. Aug. 21, 2023) (Order Dismissing Case for failure to state a claim pursuant to 27 28 U.S.C. §1915A (ECF No. 7)) (strike three); 28 / / / 1 (4) Jones v. Wasco State Prison, No. 23-cv-0543-JLT-BAM (E.D. Cal. 2 Sept. 15, 2023) (Findings and Recommendation (“F&R”) to Dismiss Civil Action for 3 failure to state a claim (ECF No. 22)); (Order Adopting F&R and Dismissing Action (ECF 4 No. 23)) (strike four). 5 Plaintiff has thus accumulated at least four “strikes” as defined by § 1915(g). 6 II. Imminent Danger of Serious Physical Injury 7 Once a prisoner has accumulated three strikes, § 1915(g) prohibits his pursuit of any 8 subsequent IFP civil action or appeal in federal court unless he faces “imminent danger of 9 serious physical injury.” See

(g); Cervantes, 493 F.3d at 1051–52. The 10 Court has reviewed Plaintiff’s Complaint and concludes it contains no “plausible 11 allegations” to suggest he faced “‘imminent danger of serious physical injury’ at the time 12 of filing.”

at 1055 (quoting

(g)). 13 In sum, Plaintiff is not entitled to the privilege of proceeding IFP because he (1) has, 14 while incarcerated, accumulated at least three “strikes” as defined by § 1915(g); and 15 (2) fails to make a “plausible allegation” that he faced imminent danger of serious physical 16 injury at the time he filed his Complaint. See id.; see also Rodriguez,

17 (finding

(g) “does not prevent all prisoners from accessing the courts; it 18 only precludes prisoners with a history of abusing the legal system from continuing to 19 abuse it while enjoying IFP status”); Franklin v. Murphy,

(9th Cir. 20 1984) (“[C]ourt permission to proceed [IFP] is itself a matter of privilege and not 21 right . . . .”). 22 CONCLUSION 23 In light of the foregoing, the Court: 24 1. DENIES the Motion to Proceed IFP pursuant to

(g) (ECF 25 No. 3); 26 2. DISMISSES this civil action sua sponte without prejudice for failing to 27 prepay the $405 civil and administrative filing fees required by

(a); 28 / / / 1 3. CERTIFIES that an IFP appeal from this Order would not be taken in good f 2 || pursuant to

(a)(3); and 3 4. DIRECTS the Clerk of the Court to close the file. 4 IT IS SO ORDERED. 5 ||Dated: February 1, 2024 . tt f te 6 on. Janis L. Sammartino 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 □□