The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF'S IN FORMA PAUPERIS STATUS BE REVOKED OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Fred Price ("Plaintiff") is a prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On June 15, 2010, Defendants filed a motion requesting revocation of Plaintiff's in forma pauperis status and dismissal of this lawsuit. (Doc. #19.) Plaintiff filed an opposition on July 1, 2010. (Doc. #25.) Defendants filed a reply on July 6, 2010. (Doc. #24.) Plaintiff filed a response to Defendants' reply (hereinafter referred to as Plaintiff's surreply) on July 16, 2010. (Doc. #26.)
For the reasons set forth below, the Court finds that Plaintiff has, on three previous cases, filed actions that have been dismissed for failing to state a claim. The Court further finds that Plaintiff was not in imminent danger at the time he filed this action. Accordingly, the Court will recommend that Plaintiff's in forma pauperis status be revoked.
Plaintiff filed the original complaint in this action on March 24, 2008. (Doc. #1.) The Court screened Plaintiff's complaint on February 21, 2010. (Doc. #11.) The Court found that Plaintiff's complaint stated cognizable claims against Defendants Cunningham and Mullins for deliberate indifference toward a serious risk to Plaintiff's safety and use of excessive force in violation of the Eighth Amendment. The Court also found that Plaintiff stated a cognizable claim against Cunningham for retaliation. All other claims raised in Plaintiff's complaint were dismissed on April 5, 2010. (Doc. #17.)
On June 15, 2010, Defendants filed a motion requesting revocation of Plaintiff's in forma pauperis status. Defendants argue that Plaintiff's in forma pauperis status should be revoked pursuant to 28 U.S.C. § 1915(g) because Plaintiff previously filed three lawsuits which were dismissed for failing to state a claim. Defendants further argue that this action should be dismissed because Plaintiff is not entitled to proceed in forma pauperis.
The Prison Litigation Reform Act provides:
[i]n 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. 28 U.S.C. § 1915(g). "[I]f defendants challenge a prisoner-plaintiff's IFP status . . . the initial production burden rests with the defendants." Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). "Thus, when challenging a prisoner's IFP status, the 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." Id. (quoting 28 U.S.C. § 1915(g)). "Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by explaining why a prior dismissal should not count as a strike." Id.
Defendants have identified three previous lawsuits filed by Plaintiff which they contend are strikes under the PLRA. Defendants contend that 1) Price v. Parks, case no. 2:02-cv-05955-UA-SH (C.D. Cal., August 21, 2002); 2) Price v. Rianda, case no. 2:02-cv-07526-UA-SH (C.D. Cal., October 3, 2002); and 3) Price v. Parks, case no. 2:02-cv-07724-UA-SH (C.D. Cal., October 16, 2002) count as strikes against Plaintiff. Thus, the burden of persuasion shifts to Plaintiff to show that these prior dismissals do not qualify as strikes.
1. Price v. Parks, case no. 2:02-cv-05955-UA-SH Counts as a Strike
Plaintiff concedes that Price v. Parks, case no. 2:02-cv-05955-UA-SH, ...