1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYRELL AINSWORTH, Case No.: 3:24cv-2350-AJB-VET CDCR #AL-4915, 12 ORDER: (1) DENYING MOTION TO Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. AS BARRED BY

(g); 14 and

15 CHANTHALANGSY, DR. (2) DISMISSING CIVIL ACTION 16 MUHAMMAD, DR. SAHA, JOHN DOE WITHOUT PREJUDICE FOR 17 #1, JOHN DOE #2, JOHN DOE #3, FAILURE TO PAY FILING FEE RAFAEL ACEVEDO, REQUIRED BY

(a) 18 Defendants. 19 20 21 22 On December 11, 2024, Plaintiff Tyrell Ainsworth, a state prisoner proceeding pro 23 se, filed a civil rights Complaint pursuant to

. ECF No. 1. The Court 24 dismissed the action without prejudice on December 17, 2024, because Plaintiff failed to 25 satisfy the filing fee requirement. ECF No. 2. The Court notified Plaintiff that to have his 26 case reopened he must either pay the civil filing fee or file a request to proceed in forma 27 pauperis (“IFP”) no later than January 31, 2025.

. On January 7, 2025, Plaintiff filed 28 an IFP Motion. ECF No. 4. 1 I. Motion to Proceed IFP 2 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 3 Sheriff’s Office,

(9th Cir. 2011). Prisoners like Plaintiff, however, “face 4 an additional hurdle.”

In addition to requiring prisoners to “pay the full amount of a 5 filing fee,” in “monthly installments” or “increments” as provided by 28 U.S.C. 6 § 1915(a)(3)(b), the Prison Litigation Reform Act (“PLRA”) amended section 1915 to 7 preclude the privilege to proceed IFP in cases where the prisoner: 8 . . . 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 9 dismissed on the grounds that it is frivolous, malicious, or fails to state a 10 claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 11 12

(g). 13 “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. 14 King,

, 1116 n.1 (9th Cir. 2005). “Once a prisoner has accumulated three 15 strikes, he is prohibited by § 1915(g) from pursuing any other IFP action in federal court 16 unless he can show he is facing “imminent danger of serious physical injury.” See 28

(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s exception for IFP 18 complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger 19 of serious physical injury’ at the time of filing.”). “Strikes are prior cases or appeals, 20 brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that (they 21 were) frivolous, malicious, or fail[ed] to state a claim,” Andrews,

n.1, 22 “even if the district court styles such dismissal as a denial of the prisoner’s application to 23 file the action without prepayment of the full filing fee.” O’Neal v. Price,

, 24 1153 (9th Cir. 2008). When courts “review a dismissal to determine whether it counts as a 25 strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central 26 question is whether the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure 27 to state a claim.’” El-Shaddai v. Zamora,

(9th Cir. 2016) (quoting 28 Blakely v. Wards,

(4th Cir. 2013)). 1 Defendants typically carry the initial burden to produce evidence demonstrating a 2 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket may 3 be sufficient to show that a prior dismissal satisfies at least one on the criteria under 4 § 1915(g) and therefore counts as a strike.” Andrews,

. That is the case 5 here. The Court “‘may take notice of proceedings in other courts, both within and without 6 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 7 Bias v. Moynihan,

(9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 8

, 803 n.2 (9th Cir. 2002)). 9 Based on a review of court proceedings available on PACER, the Court finds that 10 Plaintiff Tyrell Ainsworth, identified as CDCR Inmate #AL-4915, while incarcerated, has 11 had at least three prior civil actions dismissed on the grounds that they were frivolous, 12 malicious, or failed to state a claim upon which relief may be granted. They are: 13 (1) Ainsworth v. Frisco, Case No. 2:18-cv-07682-PSG-AGR (C.D. Cal. Sept. 14, 2018 (Doc. No. 4) (order dismissing as frivolous, malicious, or failure to state a 14 claim on which relief may be granted) (strike one); 15 (2) Ainsworth v. Batsakis, Case No. 2:23-cv-01281-PA-AGR (C.D. Cal. Feb. 27, 16 2023) (Doc. No. 4) (order dismissing as frivolous, malicious, or failure to state a 17 claim on which relief may be granted) (strike two);

18 (3) Ainsworth v. Macombre, et al., Case No. 2:23-cv-04263-PA-AGR (C.D. Cal. 19 July 24, 2023 (Doc. No. 6) (order dismissing as frivolous or malicious (strike three). 20 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 21 “strikes” as defined by § 1915(g), he is not entitled to the privilege of proceeding IFP in 22 this action unless he makes a “plausible allegation” that he faced imminent danger of 23 serious physical injury at the time he filed his Complaint. See Cervantes, 493 F.3d at 1055; 24 Rodriguez, 169 F.3d at 1180 (finding that

(g) “does not prevent all 25 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 26 the legal system from continuing to abuse it while enjoying IFP status”); see also Franklin 27 v. Murphy,

(9th Cir. 1984) (“[C]ourt permission to proceed IFP is 28 itself a matter of privilege and not right.”) l Plaintiff does not meet the “imminent danger of serious physical injury” exception 2 ||under

(g). Imminent danger requires an allegation that a harm is “ready 3 || to take place” or “hanging threateningly over one’s head.” Andrews v. Cervantes,

|| 1047, 1056 (9th Cir. 2007). It “cannot be triggered solely by complaints of past injury or 5 || generalized fears of possible future harm.” Hernandez v. Williams, No. 21-cv-347-MMA- 6 || KSC,

, at *2 (S.D. Cal. Apr. 8, 2021). In his Complaint, Plaintiff alleges 7 || he received delayed and/or inadequate medical care for swollen tonsils in early December 8 2024. He states that on December 2, 2024, after he became frustrated by the alleged 9 || insufficient medical care, he “swallowed 30-40 pills on camera,” to try and get treatment. 10 |//d. at 5. Plaintiff was hospitalized, treated, and subsequently discharged on December 4, 11 2024.

While he a states he is “continuously” in “imminent danger,” Plaintiff alleges no 12 in his Complaint beyond a vague assertion that his inadequate medical care “‘s 13 ongoing.” ECF No. | at 8. Thus, Plaintiff has not satisfied the imminent danger of serious 14 || physical injury requirement and as such, may not proceed IFP in this case. 15 Conclusion and Orders 16 For the reasons set forth above, the Court: 17 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 11) as barred by 28 U.S.C. 18 ||§ 1915(g); (2) DENIES Plaintiff's Motion to Supplement (ECF No. 6) as moot; 19 ||(3) DISMISSES this civil action sua sponte without prejudice for failing to prepay the 20 || $405 civil and administrative filing fees required by

(a); (3) CERTIFIES 21 || that an IFP appeal from this Order would be frivolous pursuant to

(a)(3); 22 (4) DIRECTS the Clerk of the Court to close the file. 23 IT IS SO ORDERED. 24 || Dated: January 14, 2025 © 25 Hon. Anthony J. attaglia 26 United States District Judge 27 28