1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARTIN J. BIBBS., Case No. 24cv0514-JAH (LR) CDCR #H-03951, 12 ORDER: Plaintiff, 13 vs. (1) DENYING MOTION TO 14 PROCEED IN FORMA PAUPERIS

15 AS BARRED BY

(g) MRS. LEWIS, Associate Warden, et al.,

16 Defendants. AND 17 (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR 19 FAILURE TO PAY FILING FEE REQUIRED BY

(a) 20 21 22 Plaintiff Martin J. Bibbs, a state prisoner currently incarcerated at Kern Valley State 23 Prison in Delano, California, is proceeding pro se with a civil rights Complaint pursuant to 24

alleging Defendants violated his constitutional rights while he was 25 incarcerated at R.J. Donovan Correctional Facility (“RJD”) in San Diego. (ECF No. 1.) 26 Plaintiff did not pay the filing fee required by

(a) to commence a civil 27 action at the time he filed his Complaint; instead, he has filed a Motion to Proceed In Forma 28 Pauperis (“IFP”) pursuant to

(a). (ECF No. 2.) 1 I. IFP MOTION 2 A. Legal Standard 3 All parties instituting any civil action, suit or proceeding in a district court of the 4 United States, except an application for writ of habeas corpus, must pay a filing fee of 5 $405, consisting of a $350 statutory fee plus an additional administrative fee of $55, 6 although the administrative fee does not apply to persons granted leave to proceed IFP. 7 See

(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee 8 Schedule, § 14 (eff. Dec. 1, 2023)). The action may proceed despite a plaintiff’s failure to 9 prepay the fee only if he is granted leave to proceed IFP pursuant to

(a). 10 See Andrews v. Cervantes,

(9th Cir. 2007). “All persons, not just 11 prisoners, may seek IFP status.” Moore v. Maricopa County Sheriff’s Office,

, 12 892 (9th Cir. 2011). Prisoners like Bibbs, however, “face an additional hurdle.”

13 “To help staunch a ‘flood of nonmeritorious’ prisoner litigation, the Prison Litigation 14 Reform Act of 1995 (PLRA) established what has become known as the three-strikes rule.” 15 Lomax v. Ortiz-Marquez,

(2020), quoting Jones v. Bock,

(2007). “That rule generally prevents a prisoner from bringing suit in forma 17 pauperis (IFP)—that is, without first paying the filing fee—if he has had three or more 18 prior suits ‘dismissed on the grounds that (they were) frivolous, malicious, or fail(ed) to 19 state a claim upon which relief may be granted.’”

quoting

(g). “A 20 negative consequence that may impact a prisoner who files a frivolous complaint is a 21 restriction on his ability to file future cases without prepaying filing fees.” Harris v. 22 Mangum,

(9th Cir. 2017). 23 When courts “review a dismissal to determine whether it counts as a strike, the style 24 of the dismissal or the procedural posture is immaterial. Instead, the central question is 25 whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a 26 claim.’” El-Shaddai v. Zamora,

(9th Cir. 2016), quoting Blakely v. 27 Wards,

(4th Cir. 2013). “[I]f a case was not dismissed on one of the 28 specific enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. 1 Harris,

(9th Cir. 2019); see also Hoffman v. Pulido,

, 2 1152 (9th Cir. 2019) (“[T]o qualify as a strike for § 1915(g), a case as a whole, not just 3 some of its individual claims, must be dismissed for a qualifying reason.”). Once a prisoner 4 accumulates three strikes, § 1915(g) precludes his ability to proceed IFP in any other civil 5 actions or appeals in federal court unless he alleges he faced “imminent danger of serious 6 physical injury” at the time of the filing of the new complaint. Cervantes,

1051-52 (quoting

(g)). 8 B. Analysis 9 Defendants typically carry the initial burden to produce evidence demonstrating a 10 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 11 records may be sufficient to show that a prior dismissal satisfies at least one of the criteria 12 under § 1915(g) and therefore counts as a strike.” Andrews v. King,

, 1120 13 (9th Cir. 2005). Upon reviewing the dockets of the Eastern and Northern Districts of 14 California, the Court finds Bibbs is ineligible to proceed IFP in this case, because while 15 incarcerated, he has had three prior prisoner civil actions dismissed on the grounds that 16 they were frivolous, malicious, or failed to state a claim upon which relief may be granted. 17 Pursuant to Federal Rule of Evidence 201(b)(2), this Court takes judicial notice of the 18 federal dockets in Bibbs’ prior actions. United States v. Wilson,

(9th 19 Cir. 1980) (stating that a court may take judicial notice of its own records in other cases, 20 as well as other courts’ records). Bibbs’ relevant prior actions are: 21 (1) Bibbs v. Tilton, et al., Civil Case No. 1:11cv1012-GSA (E.D. Cal. Jan. 13, 2014) (Order Dismissing Case with prejudice for failure to state a 22 claim upon which relief may be granted pursuant to 28 U.S.C. 23 §§ 1915(e)(2)(B)(ii) and 1915A) (ECF No. 23 at 7) (strike one); 24 (2) Bibbs v. Reich, et al., Civil Case No. 3:21cv6079-CRB (N.D. Cal. May 25 15, 2023) (Order Granting Motion to Dismiss with leave to amend pursuant to Fed. R. Civ. P. 12(b)(6))1 (ECF No. 42 at 2‒6); id. (N.D. 26 27 1 This case counts a strike under § 1915(g) because the Court granted Defendants’ 12(b)(6) 28 1 Cal. April 21, 2023) (Order of Dismissal) (ECF No. 43 at 1) (strike two); and 2 3 (3) Bibbs v. Macay, et al., Civil Case No. 3:23cv3023-CRB (N.D. Cal. July 5, 2023) (Order of Dismissal pursuant to 28 U.S.C. § 1915A(b) for 4 failure to state a claim upon which § 1983 relief may be granted) (ECF 5 No. 5 at 3) (strike three).3 6 Because Bibbs has accumulated three “strikes” pursuant to § 1915(g) while 7 incarcerated, he cannot proceed IFP unless he meets its “imminent danger” exception. 8 “Imminent danger” requires an allegation that a harm is “ready to take place,” or “hanging 9 threateningly over one’s head” at the time the complaint is filed, Cervantes

1056, and “cannot be triggered solely by complaints of past injury or generalized fears of 11 possible future harm.” Hernandez v. Williams, No. 21cv0347-MMA (KSC),

1317376, at *2 (S.D. Cal. Apr. 8, 2021), citing Cervantes,

. 13 Bibbs’ Complaint does not include any plausible allegations of imminent physical 14 danger. Instead, he claims Defendants were present when he was punched by another 15 inmate on June 7, 2023, and that they failed to immediately react, failed to order a medical 16 examination to determine possible injuries, and failed to properly document the incident. 17 (ECF No. 1 at 3.) In a second claim, he alleges he was not provided clean bedding or 18 19 20 was clear from the face of his pleading that several claims were time-barred; and 2) the 21 remaining claims failed to state a claim upon which § 1983 relief could be granted. See Reich, Case No. 21cv6079-CRB (N.D. Cal. March 15, 2023) (ECF No. 42 at 3-6); see also 22 Hoffman,

; Belanus v. Clark,

(9th Cir. 2007) 23 (concluding that Fed. R. Civ. P. 12(b)(6) dismissal of time-barred complaint “for failure to state a cause of action upon which relief could be granted” was properly “assessed as a 24 strike” pursuant to

(g)). 25 2 See Mangum,

(“A prisoner may not avoid incurring strikes simply by declining to take advantage of [an] opportunit[y] to amend.”). 26 3 Dismissals pursuant to Heck v. Humphrey,

(1994) “may constitute a PLRA 27 strike for failure to state a claim when Heck’s bar to relief is obvious from the face of the complaint, and the entirety of the complaint is dismissed for a qualifying reason under the 28 1 |}clothing during a lockdown which lasted eight days in March 2023. (Ud. at 4.) Because 2 ||nothing in his pleading suggests Bibbs faced an “‘on going danger” at the time of filing, 3 one that was “ready to take place,” or “hanging threateningly over [his] head,” he does 4 ||not meet the “imminent danger” exception to the three strikes rule. Cervantes,

|| 1055 (quoting

(g)). 6 CONCLUSION 7 For the reasons explained, the Court: 8 1. DENIES Bibbs’ Motion to Proceed IFP [ECF No. 2] as barred by 28 U.S.C. 9 1915(g); 10 2. DISMISSES this civil action without prejudice based on Bibbs’ failure to pay 11 full statutory and administrative $405 civil filing fee required by

(a); 12 3. CERTIFIES that an IFP appeal would not be taken in good faith pursuant to

(a)(3); and 14 4. DIRECTS the Clerk of Court to close the case. 15 IT IS SO ORDERED. 16 Dated: March 25, 2024 M&S 17 John A. Houston 18 Unitéd States District Judge 19 20 21 22 23 24 25 26 27 28 5