The opinion of the court was delivered by: Dennis L. United States Magistrate Judge
FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS BE GRANTED OBJECTIONS DUE WITHIN TWENTY-ONE DAYS (DOC. 43)
Findings And Recommendation
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 in this civil rights action pursuant to 42 U.S.C. § 1983. On November 2, 2007, Plaintiff filed a motion to proceed in forma pauperis in this action. Doc. 5. On November 30, 2007, the Court granted Plaintiff's motion. Doc. 6. This action is proceeding on Plaintiff's amended complaint, filed February 9, 2009, against Defendants Hernandez-Young, Martinez, Masiel, Melo, Mendoza, Moral, Price, and Wilson ("Defendants"). Pending before the Court is Defendants' motion to dismiss Plaintiff's action, filed August 30, 2010. Defs.' Mot. Dismiss, Doc. 43. Defendants contend that Plaintiff's in forma pauperis status should be revoked and that this action should be dismissed. Plaintiff filed his opposition on September 9, 2010. Doc. 46. Defendants filed their reply on September 14, 2010. Doc. 45. The matter is submitted pursuant to Local Rule 230(l).
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.
The Court granted Plaintiff in forma pauperis pursuant to court order on November 30, 2007. Doc. 6. 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 3:13-4:1. Defendants also contend that Plaintiff does not qualify for in forma pauperis status under the imminent danger exception. Id. at 4:2-11. 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 pursuant to § 1915(g):
(1) Ransom v. Doe, et al., CV 96-8204 RSWL (CT) (CD. Cal.) (dismissed December 6, 1996);
(2) Ransom v. Chief Williams, et al., CV 96-8203 MRP (CT) (C.D. Cal.) (dismissed December 2 10, 1996); and (3) Ransom v. Sandoval, et al., 3:01-cv-0513 JM (JAH) (S.D. Cal.) (dismissed January 10, 2002). The Court takes judicial notice of the above cases.*fn1 Neither party disputes that Ransom v. Sandoval was dismissed for failure to state ...