Hawkins v. San Diego Cnty.
| Decision Date | 16 February 2021 |
| Docket Number | Case No.: 3:20-cv-2200-WQH-KSC |
| Parties | CHRISTOPHER HAWKINS and DARYL DUNSMORE, Plaintiffs, v. SAN DIEGO COUNTY, SAN DIEGO COUNTY JAIL, OFFICE OF ASSIGNED COUNSEL, MICHAEL GARCIA, WILLIAM TRAINOR, JACKIE BRADEN, and DOES 1-10, Defendants. |
| Court | U.S. District Court — Southern District of California |
1) DENYING IN PART MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] AND DISMISSING COMPLAINT AS TO PLAINTIFF DUNSMORE PURSUANT TO 28 U.S.C. § 1915(g)
2) GRANTING IN PART MOTION TO PROCEED IN FORMA PAUPERIS [ECF No. 2] AND DISMISSING COMPLAINT AS TO PLAINTIFF HAWKINS FOR FAILURE TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2)(B) AND 28 U.S.C. § 1915A(b)
3) DENYING MOTION FOR ADA ACCESS [ECF No. 3]
4) DENYING MOTION FOR CLASS CERTIFICATION [ECF No. 4]
5) DENYING MOTION APPOINTMENT OF COUNSEL [ECF No. 5]
6) DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER [ECF No. 6]
Plaintiffs Christopher Hawkins and Daryl Dunsmore, currently incarcerated at the San Diego County Jail ("SDCJ"), have filed a pro se civil rights action pursuant 42 U.S.C. Section 1983. (See ECF No. 1.) Plaintiffs did not prepay the $400 civil filing fee required by 28 U.S.C. Section 1914(a) at the time of filing. They have instead filed a Motion to Proceed In Forma Pauperis ("IFP") pursuant to 28 U.S.C. Section 1915(a). (See ECF No. 2.) Plaintiffs have also filed a Motion for ADA Access (ECF No. 3), a Motion for Class Certification (ECF No. 4), a Motion for Appointment of Counsel (ECF No. 5), and a Motion for a Temporary Restraining Order (ECF No. 6).
"All persons, not just prisoners, may seek IFP status." Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 892 (9th Cir. 2011). Prisoners like Dunsmore, however, "face an additional hurdle." Id.
In addition to requiring prisoners to "pay the full amount of a filing fee," in "monthly installments" or "increments" as provided by 28 U.S.C. § 1915(a)(3)(b), the Prison Litigation Reform Act ("PLRA") amended section 1915 to preclude the privilege to proceed IFP in cases where the 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 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief can be granted, unless the prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g).
"This subdivision is commonly known as the 'three strikes' provision." Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). "Pursuant to § 1915(g), a prisoner with three strikes or more cannot proceed IFP." Id.; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007) (hereafter "Cervantes") (). The objective of the PLRA is to further "the congressional goal of reducing frivolous prisoner litigation in federal court." Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
"Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed on the ground that they were frivolous, malicious, or failed to state a claim," Andrews, 398 F.3d at 1116 n.1 (internal quotations omitted), "even if the district court styles such dismissal as a denial of the prisoner's application to file the action without prepayment of the full filing fee." O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). "When . . . presented with multiple claims within a single action," however, courts may "assess a PLRA strike only when the case as a whole is dismissed for a qualifying reason under the Act." Hoffman v. Pulido, 928 F.3d. 1147, 1152 (9th Cir. 2019) (citing Washington v. L.A. Cty. Sheriff's Dep't, 833 F.3d 1048, 1057 (9th Cir. 2016)).
Once a prisoner has accumulated three strikes, section 1915(g) prohibits his pursuit of any subsequent IFP civil action or appeal in federal court unless he faces "imminent danger of serious physical injury." See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051-52 ().
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The Court has reviewed the Complaint and finds it contains no "plausible allegations" to suggest Dunsmore "faced 'imminent danger of serious physical injury' at the time of filing." Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). In count one, Dunsmore alleges "[t]he Defendants have established law policy and procedures . . . [which] obstruct[] Plaintiff's access to the courts . . . [by allowing] them to make judicial decisions although not judicial officers . . . to refuse to file legal documents, block writs, legal mail, legal tools, [etc.]." Compl. at 4. In counts two and three, Dunsmore also alleges that Defendants have "refused to establish and maintain access to services for individuals with disabilities both physical and mental as qualified under the ADA . . . ," and that "Defendants are depriving Plaintiffs of the right to practice their religion. . . ." Id. at 5-6. These allegations do not rise to the level of "imminent danger of serious physical injury." See Cervantes, 493 F.3d at 1055.
While Defendants typically carry the initial burden to produce evidence demonstrating a prisoner is not entitled to proceed IFP, Andrews, 398 F.3d at 1119, "in some instances, the district court docket may be sufficient to show that a prior dismissal satisfies at least one on the criteria under § 1915(g) and therefore counts as a strike." Id. at 1120. That is the case here.
Based on a review of its own docket and other court proceedings available on PACER, the Court finds that Daryl Lee Dunsmore, identified as CDCR Inmate #AD-6237, while incarcerated, has had three prior civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted.
They are:
Accordingly, because Dunsmore has, while incarcerated, accumulated at least three "strikes" as defined by § 1915(g), and he fails to make a "plausible allegation" that he faced imminent danger of serious physical injury at the time he filed his Complaint, he is not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 1055; Rodriguez, 169 F.3d at 1180 (); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (). The case is thus DISMISSED as to Plaintiff Dunsmore.
All parties instituting any civil action, suit or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff's failure toprepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to proceed IFP remains obligated to pay the entire fee in "increments" or "installments," Bruce v. Samuels, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d 1182, 1185 (9th Cir. 2015), and regardless of whether his action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1), (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir. 2002).
Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a "certified copy of the trust fund account statement (or institutional equivalent) for . . . the 6-month period immediately preceding the filing of the complaint." 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the certified trust account statement, the Court assesses an initial payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the average monthly balance in the account for the past six months, whichever is greater, unless the prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having custody of the prisoner then collects subsequent payments, assessed at 20% of the preceding month's income, in any month in which his account exceeds $10, and...
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