FINDINGS & RECOMMENDATIONS
Plaintiff is a state prison inmate proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Defendants previously have filed a motion to dismiss, arguing plaintiff had "struck out" within the meaning of the Prison Litigation Reform Act (PLRA) and that the complaint failed to state a claim against defendant Cox. Docket No. 11. The court initially recommended that the motion be denied, reasoning that dismissals for failure to prosecute did not constitute strikes, and found that the instant complaint stated a claim. Defendants objected on the ground that the dismissals stemmed from plaintiff's failure to submit amended complaints after initial complaints had been found not to state a claim and that because "substance matters," these dismissals should be counted as strikes; they did not object to the determination that this complaint stated a claim. Docket No. 20. The court vacated its recommendation and gave plaintiff an opportunity to respond to defendants' arguments. Docket No. 21. After requesting an extension of time to file a response, he has not done so.
I. "Three Strikes" and the PLRA
The "three strikes" provision of the PLRA empowers a court to deny in forma pauperis status to a litigant who has had three actions "dismissed on the grounds that [they are] frivolous, malicious, or fail to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). An action meets this standard if it is "based on an indisputably meritless legal theory" or its "factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit and claims of infringement of a legal interest which clearly does not exist." Neitzke v. Williams, 490 U.S. 319, 327 (1989) (internal citation omitted).
When defendants challenge a plaintiff's in forma pauperis status, they bear the initial burden of production:
[T]he defendants must produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions that were dismissed because they were "frivolous, malicious, or fail[ed] to state a claim." . . . [T]he defendants may not simply rest on the fact of dismissal. Rather, the defendants must produce court records or other documentation that will allow the district court to determine because it was "frivolous, malicious or fail[ed] to state a claim."
Once defendants have met this initial burden, it becomes the plaintiff's burden to explain why a prior dismissal should not count as a strike. It is plaintiff's "ultimate burden" to persuade the court that § 1915(g) does not apply. Id.
II. Plaintiff's Litigation History
A. Keeton v. Valadez, Civ. No. S-03-625 FCD DAD P
In this case, the court initially advised plaintiff he could request voluntary dismissal of his action, which did not appear to have been administratively exhausted, before the court assessed the filing fee. Id. at 13. In response, plaintiff filed a number of documents, including one the court interpreted as "mixed together in a single pleading his objections to the findings and recommendations, his purported amended complaint and a request for injunctive relief." Docket No. 12-3 at 17. The court found this mixed presentation obscured the substance of the complaint, but still examined plaintiff's allegations and discerned the possibility that plaintiff could properly allege failure to protect and excessive force claims. Id. at 18-19. It granted plaintiff leave to file a second amended complaint. Id. at 21.
Although the court granted plaintiff additional time in which to file a second amended complaint, plaintiff did not do so. Id. at 26, 32. The assigned magistrate judge then recommended dismissal for failure to prosecute and because plaintiff was refusing legal mail sent to him by the court. Docket No. 12-4 at 3. Plaintiff then objected and asked for a stay of the proceedings. Id. at 7. The court gave plaintiff the option of filing a request for voluntary dismissal or a second amended complaint. Id. at 8. When plaintiff did not comply with this order, the magistrate judge recommended dismissal without prejudice based on Local Rule 11-110 and Federal Rule of Civil Procedure 41(b). Id.
Plaintiff again filed objections based on a transfer and a claimed inability to gain access to his legal materials. Id. at 16. The court gave him yet another opportunity to request a voluntary dismissal or file a second amended complaint. Id. at 16-17. When plaintiff did not comply with this order, the magistrate judge again recommended dismissal without prejudice, citing Local Rule 11-110 and Federal Rule of Civil Procedure 41(b). Id. at 20. Ultimately the district judge adopted this recommendation and dismissed the case without prejudice. Docket No. 12-5 at 7.
B. Keeton v. Grannis, Civ. No. 03-1724 DFL DAD P
In this case, the assigned magistrate judge observed that "plaintiff's complaint is not a model of pleading" and described the claim, as the judge could best discern it, as based on restrictions placed on the number of appeals plaintiff could pursue in any given time. Docket No. 12-6 at 10. Although the court found plaintiff "failed to state a cognizable claim against defendants Cry and Grannis," it gave plaintiff leave to file an amended complaint so that he could clarify the basis of his claim or dismiss the action voluntarily. Id.
Plaintiff failed to file an amended complaint and the magistrate judge recommended that the action be dismissed without prejudice for this reason, again citing to Federal Rule of Civil Procedure 41(b) and Local Rule 11-110. Id. at 15. Once again, plaintiff objected and sought additional time to amend, averring that a transfer had separated him from his legal materials. Id. at 19-20. The judge granted plaintiff the time he ...