1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IVAN LEE MATTHEWS, II, Case No.: 25cv2012-DMS (AHG)

CDCR #BZ-9335,

12

ORDER DENYING MOTION TO

Plaintiff, 13 PROCEED IN FORMA PAUPERIS vs. [ECF No. 2] AND DISMISSING 14

COMPLAINT PURSUANT TO

15 28 U.S.C. § 1915(g) CALIFORNIA, et al.,

16 Defendants. 17 18 19 20 Ivan Lee Matthews, II, currently incarcerated at Calipatria State Prison in Imperial, 21 California, proceeding pro se, has filed a civil rights action pursuant 42 U.S.C. § 1983. 22 ECF No. 1. Plaintiff did not prepay the civil filing fee required by 28 U.S.C. § 1914(a) at 23 the time of filing. He has instead filed a Motion to Proceed In Forma Pauperis (“IFP”) 24 pursuant to 28 U.S.C. §1915(a). ECF No. 2. 25 IFP MOTION 26 All parties instituting any civil action, suit or proceeding in a district court of the 27 United States, except an application for writ of habeas corpus, must pay a filing fee of $350 28 fee, and those not granted leave to proceed IFP must pay an additional administrative fee 1 of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court 2 Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s 3 failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 4 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); 5 Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). 6 A. “Three Strikes” Provision 7 For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) 8 amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP: 9 . . . if [a] prisoner 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 10 States that was dismissed on the grounds that it is frivolous, malicious, or fails 11 to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 12

13 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 14 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). 15 “Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from 16 pursuing any other IFP action in federal court unless he can show he is facing “imminent 17 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 18 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that 19 the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”) 20 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were 21 dismissed ‘on the ground that (they were) frivolous, malicious, or fail[ed] to state a claim,” 22 Andrews, 398 F.3d at 1116 n.1, “even if the district court styles such dismissal as a denial 23 of the prisoner’s application to file the action without prepayment of the full filing fee.” 24 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “review a dismissal to 25 determine whether it counts as a strike, the style of the dismissal or the procedural posture 26 is immaterial. Instead, the central question is whether the dismissal ‘rang the PLRA bells 27 of frivolous, malicious, or failure to state a claim.’” El-Shaddai v. Zamora, 833 F.3d 1036, 28 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). 1 While defendants typically carry the initial burden to produce evidence showing a 2 prisoner is not entitled to proceed IFP, “in some instances, the district court docket may be 3 sufficient to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) 4 and therefore counts as a strike.” Andrews, 398 F.3d at 1120. That is the case here. 5 B. Prior “Strikes” 6 A court “‘may take notice of proceedings in other courts, both within and without 7 the federal judicial system, if those proceedings have a direct relation to matters at issue.’” 8 Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 9 285 F.3d 801, 803 n.2 (9th Cir. 2002)). The Court finds that Plaintiff Ivan Lee Matthews, 10 II, currently identified as California Department of Corrections and Rehabilitation 11 (“CDCR”) Inmate #BZ-9335, while incarcerated, has had at least three prior civil actions 12 dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon 13 which relief may be granted. In fact, Plaintiff indicates in his Complaint that he has 14 previously been prevented from proceeding IFP in the federal courts under the three strikes 15 provision of § 1915(g). See ECF No. 1 at 7. 16 They are: 17 (1) Matthews v. Pistone, et al., No. 04cv3712-JSW, 2005 WL 2671386, at *3 (N.D. 18 Cal. Oct. 19, 2005) (order dismissing complaint without leave to amend for failure to state 19 a claim pursuant to 28 U.S.C. §1915A) (strike one); 20 (2) Matthews v. Alameida, No. 05cv0016-OWW (SMS) (E.D. Mar. 29, 2006) (order 21 adopting R&R and dismissing complaint for failure to obey court order and failure to state 22 a claim [ECF No. 24]) (strike two); and 23 (3) Matthews v. Los Angeles Sheriff’s Dept., et al., No. 25cv1766-RGK (AGR) 24 (C.D. Cal. Mar. 5, 2025) (order dismissing complaint for failure to state a claim [ECF No. 25 4]) (strike three). 26 Accordingly, Plaintiff has accumulated at least three “strikes” as defined by 27 § 1915(g). 28 / / / 1 Imminent Danger of Serious Physical Injury 2 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 3 any subsequent IFP civil action or appeal in federal court unless he faces “imminent 4 || danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 5 ||52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 6 || that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”’). 7 || The Court has reviewed Plaintiff's Complaint and concludes it contains no “plausible 8 allegations” to suggest Matthews faced “‘imminent danger of serious physical injury’ at 9 || the time of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). 10 Accordingly, because Plaintiff has, while incarcerated, accumulated at least three 11 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 12 ||imminent danger of serious physical injury at the time he filed his Complaint, he is not 13 |/entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 14 || Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. § 1915(g) 15 || “does not prevent all prisoners from accessing the courts; it only precludes prisoners with 16 |/a history of abusing the legal system from continuing to abuse it while enjoying IFP 17 status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (stating that 18 || “court permission to proceed IFP is itself a matter of privilege and not right’). 19 CONCLUSION AND ORDER 20 Good cause appearing, the Court DENIES the Motion to Proceed IFP pursuant to 21 U.S.C. § 1915(g) and DISMISSES Plaintiff's Complaint for failure to satisfy the filing 22 ||fee requirement. Unless Plaintiff pays the $402 civil filing fee within forty-five (45) days 23 || of the date this Order is filed, the Court will enter a final judgment of dismissal. 24 IT IS SO ORDERED. 25 ||Dated: September 17, 2025 ~ f 26 □ YM - 37 Hon. Dana M. Sabraw United States District Judge 28 4 ee