1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 MARTIN WARE, Case No.: 3:19-cv-01476-GPC-MSB

CDCR #H-13103,

11

ORDER:

Plaintiff, 12 vs. 1) DENYING MOTION TO 13

PROCEED IN FORMA PAUPERIS

14 AS BARRED BY 28 U.S.C. § 1915(g)

C. ARCHULETA, et al., [ECF No. 2]

15 Defendants. 16 AND

17 (2) DISMISSING CIVIL ACTION 18 WITHOUT PREJUDICE FOR

FAILURE TO PAY FILING FEE

19 REQUIRED BY 28 U.S.C. § 1914(a) 20 21 Plaintiff, Martin Ware, currently incarcerated at Richard J. Donovan Correctional 22 Facility (“RJD”), in San Diego, California, has filed a civil rights Complaint pursuant to 23 42 U.S.C. § 1983. See Compl., ECF No. 1. He has not prepaid the full civil filing fee 24 required by 28 U.S.C. § 1914(a); instead, he has filed a Motion to Proceed In Forma 25 Pauperis (“IFP”) (ECF No. 2). 26 / / / 27 / / / 28 / / / 1 I. Motion to Proceed IFP 2 A. Standard of Review 3 “All persons, not just prisoners, may seek IFP status.” Moore v. Maricopa County 4 Sheriff’s Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Plaintiff, however, “face 5 an additional hurdle.” Id. 6 In addition to requiring prisoners to “pay the full amount of a filing fee,” in “monthly 7 installments” or “increments” as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison 8 Litigation Reform Act (“PLRA”) amended section 1915 to preclude the privilege to 9 proceed IFP in cases where the prisoner: 10 . . . 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 11 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 12 upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury. 13 14 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ 15 provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to 16 § 1915(g), a prisoner with three strikes or more cannot proceed IFP.” Id.; see also Andrews 17 v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter “Cervantes”) (under the 18 PLRA, “[p]risoners who have repeatedly brought unsuccessful suits may entirely be barred 19 from IFP status under the three strikes rule[.]”). The objective of the PLRA is to further 20 “the congressional goal of reducing frivolous prisoner litigation in federal court.” Tierney 21 v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997). 22 “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which 23 were dismissed on the ground that they were frivolous, malicious, or failed to state a claim,” 24 Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), “even if the district court 25 styles such dismissal as a denial of the prisoner’s application to file the action without 26 prepayment of the full filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). 27 When courts “review a dismissal to determine whether it counts as a strike, the style of the 28 dismissal or the procedural posture is immaterial. Instead, the central question is whether 1 the dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 2 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 3 F.3d 607, 615 (4th Cir. 2013)). “When … presented with multiple claims within a single 4 action,” however, courts may “assess a PLRA strike only when the case as a whole is 5 dismissed for a qualifying reason under the Act.” Hoffman v. Pulido, 928 F.3d. 1147, 1152 6 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th 7 Cir. 2016)). 8 Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit 9 of any subsequent IFP civil action or appeal in federal court unless he faces “imminent 10 danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051- 11 52 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation 12 that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). 13 B. Discussion 14 The Court has reviewed Plaintiff’s Complaint and finds it contains no “plausible 15 allegations” to suggest he “faced ‘imminent danger of serious physical injury’ at the time 16 of filing.” Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, as described 17 above, Plaintiff seeks to sue RJD prison officials over constitutional violations that he 18 alleges occurred in 2017. These claims fail to plausibly meet § 1915(g)’s exception for 19 imminent danger. See Cervantes, 493 F.3d at 1055-56 (plaintiff must allege to face a real, 20 proximate and/or ongoing danger at the time of filing). 21 And while Defendants typically carry the initial burden to produce evidence 22 demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, “in 23 some instances, the district court docket may be sufficient to show that a prior dismissal 24 satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike.” Id. at 25 1120. That is the case here. 26 A court may take judicial notice of its own records, see Molus v. Swan, Civil Case 27 No. 3:05-cv-00452-MMA-WMc, 2009 WL 160937, *2 (S.D. Cal. Jan. 22, 2009) (citing 28 United States v. Author Services, 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. 1 Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take 2 notice of proceedings in other courts, both within and without the federal judicial system, 3 if those proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 4 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th 5 Cir. 2002)). 6 Based on a review of court proceedings available on PACER, the Court finds that 7 Plaintiff Martin Ware, identified as CDCR Inmate #H-13103, while incarcerated, has had 8 at least four prior civil actions dismissed on the grounds that they were frivolous, malicious, 9 or failed to state a claim upon which relief may be granted. 10 They are: 11 (1) Ware v. Cambra, Civil Case No. 98-cv-0716 CRB PR (N.D. Cal. Apr. 17, 1998) (Order dismissing complaint as duplicative/malicious) (strike one); 12

13 (2) Ware v. Terhune, Civil Case No. 98-cv-4874 CRB PR (N.D. Cal. Jan. 5, 1999) (Order dismissing complaint for failing to state a claim) (strike two); 14

15 (3) Ware v. Pfeiffer, et al. Civil Case No. 16-cv-1531 AWI SAB (E.D. Cal. Sept. 25, 2017) (Order adopting findings and recommendations dismissing 16 action for failure to comply with court order and failure to state a cognizable 17 claim for relief) (strike three);

18 (4) Ware v. M. Bitter, et al. Civil Case No. 16-cv-1302 DAD SAB (E.D. Cal. 19 Dec. 6, 2017) (Order adopting findings and recommendations and dismissing case for failure to state a claim) (strike four). 20 21 Accordingly, because Plaintiff has, while incarcerated, accumulated at least four 22 “strikes” as defined by § 1915(g), and he fails to make a “plausible allegation” that he faced 23 imminent danger of serious physical injury at the time he filed his Complaint, he is not 24 entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; 25 Rodriguez, 169 F.3d at 1180 (finding that 28 U.S.C. § 1915(g) “does not prevent all 26 prisoners from accessing the courts; it only precludes prisoners with a history of abusing 27 the legal system from continuing to abuse it while enjoying IFP status”). 28 1 Conclusion and Orders 2 For the reasons set forth above, the Court: 3 (1) DENIES Plaintiff's Motion to Proceed IFP (ECF No. 2) as barred by 28 U.S.C. 4 1915(g); (2) DISMISSES this civil action sua sponte without prejudice for failing to 5 || prepay the $400 civil and administrative filing fees required by 28 U.S.C. § 1914(a); (3) 6 || CERTIFIES that an IFP appeal from this Order would be frivolous pursuant to 28 U.S.C. 7 1915(a)(3); and (4) DIRECTS the Clerk of the Court to close the file. 8 IT IS SO ORDERED. 9 || Dated: October 3, 2019

11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5