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Ransom v. Scribner

August 3, 2010

BRYAN E. RANSOM, PLAINTIFF,
v.
A. K. SCRIBNER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED

(DOC NO. 52)

OBJECTIONS DUE WITHIN 30 DAYS

Findings And Recommendations

I. Background

Plaintiff Bryan E. Ransom ("Plaintiff") is a prisoner in the custody of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's complaint against Defendants Scribner and Duncan for violation of the Eighth Amendment. On February 4, 2010, Defendants filed a motion to dismiss pursuant to 28 U.S.C. § 1915(g). (Defs.' Mot. Dismiss, DOC No. 52.) On February 19, 2010, Plaintiff filed his opposition. (Pl.'s Opp'n, DOC No. 53.) On February 22, 2010, Defendants filed their reply. (Defs.' Reply, DOC No. 55.) The matter is submitted pursuant to Local Rule 230(l).

II. Legal Standard

Title 28 of the United States Code, § 1915(g), which governs in forma pauperis proceedings in federal court, provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if 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 may be granted, unless the prisoner is under imminent danger of serious physical injury.

In making a determination as to whether a prisoner plaintiff may proceed in forma pauperis, the Court must consider all civil actions an appeals brought by the prisoner in any federal court. Section 1915(g) is commonly known as the "three strikes" provision. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2003). "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 fail [] to state a claim.'" Id. (citing 28 U.S.C. § 1915(g)) (quotations omitted). When a defendant challenges a prisoner's right to proceed in forma pauperis, the defendant bears the burden of producing sufficient evidence to establish that § 1915(g) bars the plaintiff's in forma pauperis status. Id. Once the defendant has made a prima facie case, the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply. Id.

III. Analysis

The Court granted Plaintiff in forma pauperis pursuant to court order on May 1, 2006. (DOC No. 8.) Defendants contend that Plaintiff has accrued three or more strikes pursuant to § 1915(g) and is thus ineligible to proceed in forma pauperis. (Defs.' Mem. P. & A. Mot. Dismiss 1:26-2:2.) Defendant also contends Plaintiff does not qualify for in forma pauperis status under the imminent danger exception. (Id. at 3:22-2:2.) Defendants move for revocation of Plaintiff's in forma pauperis status and dismissal of this action.

A. Strikes Pursuant To § 1915(g)

Defendants submit that the following three cases count as strikes ...


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