1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 IAN LaMONTE CORMIER, Case No. 5:19-cv-01198-SVW (AFM) 13 Plaintiff,

ORDER TO PAY THE FILING FEE

14 v. OR SHOW CAUSE PURSUANT TO 15 JAMES COMEY, et al., 28 U.S.C. §1915(G) 16 Defendants. 17 18 Plaintiff, a state prisoner presently held at Patton State Hospital, lodged for 19 filing a pro se civil rights action pursuant to 42 U.S.C. § 1983 on June 28, 2019, 20 while he was being held at the Robert Presley Detention Center (“RPDC”) in 21 Riverside, California. (ECF No. 1 at 1 (“Second Case”).) Plaintiff did not prepay 22 the filing fee nor file a request to proceed in forma pauperis (“IFP Request”). The 23 assigned magistrate judge ordered plaintiff to pay the filing fee or submit an IFP 24 Request on or before July 28, 2019, but plaintiff has failed to comply with that Order, 25 or to seek an extension of time in which to do so. (See ECF No. 4.) 26 On June 21, 2019, plaintiff lodged for filing a related case, Case No. EDCV 27 19-1151. (No. 19-1151, ECF No. 1 (“First Case”).) Plaintiff did not prepay the filing 28 fee nor file an IFP Request in the First Case. The magistrate judge ordered plaintiff 1 to pay the filing fee or submit an IFP Request in the First Case on or before July 17, 2 2019, but plaintiff has failed to comply with the Order, or to seek an extension of 3 time in which to do so. (See No. 19-1151, ECF No. 4.) In the First Case, plaintiff 4 filed a change of address, notifying the Court that, on July 1, 2019, he had been 5 transferred to Patton State Prison, in Patton, California. (No. 19-1151, ECF No. 5.) 6 In the Second Case, plaintiff did not notify the Court of his change of address, 7 but mail addressed to plaintiff’s former address has been returned to the Court since 8 July 9, 2019. (See ECF Nos. 5-8.) On July 29, 2019, plaintiff filed a one-page 9 “Sworn Affidavit or Declaration” in which he states that he is “competent to testify 10 to all matters herein,” but plaintiff does not purport to allege that he faces any danger 11 of serious physical injury. (ECF No. 9.) To date, plaintiff has not complied with the 12 Order of July 1, 2019, or seek an extension of time in which to do so, although another 13 copy of the Order was mailed to plaintiff’s address as supplied in the First Case. (No. 14 19-1198, ECF No. 7.) 15 A review of past civil actions filed by plaintiff in this Court, other District 16 Courts in the Southern and Northern Districts of California, and in the Ninth Circuit 17 Court of Appeals reflects that plaintiff is subject to the provisions of 28 U.S.C. 18 §1915(g). Pursuant to §1915(g), a prisoner may not “bring a civil action or appeal a 19 judgment in a civil action or proceeding” without prepayment of the filing fee “if the 20 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 21 facility, brought an action or appeal in a court of the United States that was dismissed 22 on the grounds that it is frivolous, malicious, or fails to state a claim upon which 23 relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury.” 28 U.S.C. §1915(g). Such dismissal is deemed a “strike.” 25 The Ninth Circuit has held that the phrase “fails to state a claim on which relief 26 may be granted” as used in §1915, parallels the language of Fed. R. Civ. P. 12(b)(6) 27 and carries the same interpretation; that the word “frivolous” refers to a case that is 28 “of little weight or importance: having no basis in law or fact”; and the word

2 1 “malicious” refers to a case “filed with the ‘intention or desire to harm another.’” See 2 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (explaining the terms used in 3 §1915(g)); see also Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (defining 4 when a case is frivolous, malicious, or duplicative). In addition, the Ninth Circuit 5 has held that the prior denial of IFP status on the basis of frivolity or failure to state 6 a claim constitutes a strike for purposes of §1915(g). See O’Neal v. Price, 531 F.3d 7 1146, 1153-54 (9th Cir. 2008) (also stating that a dismissal without prejudice may 8 count as a strike). Further, a dismissal may constitute a strike for failure to state a 9 claim if it is obvious from the face of the pleading that the claims are barred by Heck 10 v. Humphrey, 512 U.S. 477, 486-87 (1994), and the entire action is dismissed for a 11 reason that qualifies as a strike under §1915(g). Washington v. Los Angeles Cty. 12 Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016) (holding that “a dismissal may 13 constitute a PLRA strike . . . when Heck’s bar to relief is obvious from the face of the 14 complaint, and the entirety of the complaint is dismissed for a qualifying reason under 15 the PLRA”). Further, appellate affirmances do not count as strikes when the appeal 16 affirms the decision of the district court, but an appeal will count as a separate strike 17 if the appellate court “expressly states that the appeal itself was frivolous, malicious 18 or failed to state a claim.” El-Shaddai v. Zamora, 833 F.3d 1036, 1045-46 (9th Cir. 19 2016). 20 Once plaintiff has accumulated three strikes, he is prohibited from pursuing 21 any subsequent civil action without prepayment of the filing fee, unless he makes a 22 showing that he faced “imminent danger of serious physical injury” based on the 23 “circumstances at the time of the filing of the complaint.” Andrews v. Cervantes, 493 24 F.3d 1047, 1052-53, 1056-57 (9th Cir. 2007). 25 Finally, the Ninth Circuit has held that, pursuant to the language of the statute 26 and other relevant definitions of “prisoner,” “a court may screen a complaint pursuant 27 to 28 U.S.C. §1915A only if, at the time the plaintiff files the complaint, he is 28 ‘incarcerated or detained in any facility [because he] is accused of, convicted of,

3 1 sentenced for, or adjudicated delinquent for, violations of criminal law or the terms 2 and conditions of parole, probation, pretrial release, or diversionary program.’” 3 Olivas v. Nev. ex rel. Dep’t of Corr., 856 F.3d 1281, 1284 (9th Cir. 2017) (alteration 4 in original). This definition of “prisoner” applies to §1915. See Page v. Torrey, 201 5 F.3d 1136, 1139-40 (9th Cir. 2000). 6 In light of the foregoing standards, the Court takes judicial notice of the 7 following prior civil actions filed by plaintiff in the District Courts of California or 8 in the Ninth Circuit Court of Appeal that qualify as strikes for purposes of §1915(g). 9 See Fed. R. Evid. 201(b)(2), (c)(1): 10 (1) Cormier v. Liggins, Case No. CV 01-0364-K (LSP), in the Southern 11 District of California, in which the case was dismissed on May 8, 2001, for 12 failure to state a claim and as barred by Heck. (No. 01-0364, ECF No. 2 13 at 4-7; No. 3.) The district court also found in Liggins that plaintiff already 14 had three prior strikes within the meaning of §1915(g). (No. 01-0364, ECF 15 No. 2 at 4.) On Appeal, in Case No. 01-55857, the Ninth Circuit affirmed 16 the district court’s dismissal in Liggins. (No. 01-0364, ECF Nos. 15-16.) 17 The Liggins case, as well as the three earlier cases cited in that case (see 18 below), all count as separate strikes, constituting four prior strikes. 19 a. Cormier v. People of the State of California, Case No. CV 00-0249- 20 L (RBB), in the Southern District of California, in which the case 21 was dismissed on March 21, 2000, for failure to state a claim and as 22 barred by Heck. The District Court indicated that the dismissal may 23 be considered as a strike. (No. 00-0249, ECF No. 7 at 10-11, No. 8.) 24 The District Court’s decision was affirmed on appeal. (No. 00-0249, 25 ECF No. 18.) 26 b. Cormier v. Manny, Case No. CV 00-0025-W (CGA), in the Southern 27 District of California, in which the case was dismissed on May 1, 28

4 1 2000, for failure to state a claim. The District Court indicated that 2 the dismissal may count as a strike. (No. 00-0025, ECF No. 16.) 3 c. Cormier v. California, Case No. CV 00-0004-L (RBB), in the 4 Southern District of California, in which the case was dismissed on 5 May 11, 2000, for failure to state a claim and as barred by Heck. (No. 6 00-0004, ECF No. 14 at 7-8, No. 15.) 7 (2) Cormier v. Suter, Case No. EDCV 11-0801-UA (MLG), in the Central 8 District of California, in which plaintiff’s IFP Request was denied and the 9 case dismissed as frivolous on June 3, 2011. (No. 11-0801, ECF No. 2.) 10 In addition, the Ninth Circuit affirmed the district court’s dismissal and 11 found that plaintiff’s appeal was frivolous. (No. 11-0801, ECF Nos. 9, 12.) 12 (3) Cormier v. Siegler, Case No. CV 11-4907-ABC (MLG), in the Central 13 District of California, in which, on July 22, 2011, plaintiff’s Request for 14 IFP was denied as frivolous, malicious, or fails to state a claim, and the 15 district judge indicated that the dismissal may count as a strike. (No. 11- 16 4907, ECF No. 4 at 1). On Appeal, the Ninth Circuit affirmed the district 17 court and found that the appeal was frivolous. (See No. 11-4907, ECF Nos. 18 10, 16; 530 Fed. Appx. 624 (9th Cir. 2013).) 19 Accordingly, because plaintiff had already accumulated significantly more 20 than three strikes (at least six) before he initiated this action, plaintiff is precluded 21 from proceeding IFP herein unless and until he can show that, at the time this action 22 was initiated, he was “under imminent danger of serious physical injury.” 28 U.S.C. 23 §1915(g). The availability of the “imminent danger” exception “turns on the 24 conditions a prisoner faced at the time the complaint was filed, not at some earlier or 25 later time.” See Andrews, 493 F.3d at 1053 (emphasis added). Further, plaintiff 26 “bears the ultimate burden of persuading the court that §1915(g) does not preclude 27 IFP status.” Richey v. Dahne, 807 F.3d 1202, 1206 (9th Cir. 2015). Here, plaintiff 28 was detained at the RPDC at the time that he initiated this action, but plaintiff does

5 1 |} not name as defendants any officials at the RPDC in either the First Case or the 2 || Second Case. Nor does the Complaint in this action raise allegations concerning the 3 || conditions that plaintiff faced at the RPDC at the time that he filed the Complaint. 4 || Accordingly, nothing in the factual allegations in the Complaint raises a reasonable 5 || inference that plaintiff faced “imminent danger of serious physical injury” at the time 6 || that he initiated this action. 28 U.S.C. §1915(g). 7 Finally, plaintiff has filed multiple documents with the Court in addition to his 8 || change of address since the time that he initiated this action. In none of those 9 || documents does plaintiff purport to allege that he faced any ongoing danger of serious 10 || physical injury at the time that he initiated this action. 11 IT THEREFORE IS ORDERED that, on or before August 23, 2019, plaintiff 12 || shall pay the filing fee in this action, or he shall show cause in writing why he should 13 || not be denied leave to proceed IFP and why this action should not be dismissed 14 || pursuant to 28 U.S.C. §1915(g). Failure to comply with this Order will be deemed 15 || by the Court as plaintiffs consent to the dismissal of this action. 16 IT IS SO ORDERED. 17 18 || DATED: August 7, 2019 19 hy p)pnw 20 <{Gn/O LEtyy

STEPHEN V. WILSON

21 UNITED STATES DISTRICT JUDGE 22 23 24 25 26 27 28