The opinion of the court was delivered by: Honorable B. Lynn WinmillChief U. S. District Judge
ORDER ON REPORT AND RECOMMENDATION
The Court has before it a Report and Recommendation filed by the United States Magistrate Judge. (Dk. 42.) Any objections were due by February 25, 2011. Instead of filing an objection, Plaintiff filed two additional Motions for Enlargement of Time (Dkt. 43 & 45), seeking additional time to respond to Defendants' Motion to Revoke Plaintiff's in Forma Pauperis Status and to Require Plaintiff to Post Security (Dkt. 33), which has been pending since September 27, 2010.
Plaintiff previously was paroled, but did not file a response during the time he was out of prison. In addition, he requested and was provided with a sixty-day extension of time through December 21, 2010, and yet Plaintiff still filed no response. (Dkts. 38 & 42.) The Court finds that adequate cause does not exist to grant Plaintiff any further extensions. Plaintiff has not shown that he could not have filed a simple, factually-based response to Defendants' motion in the six-month time period since the motion was filed.
PLAINTIFF'S IN FORMA PAUPERIS STATUS WILL BE REVOKED
Defendants first request that Plaintiff's in forma pauperis status be revoked because he accumulated three strikes under 28 U.S.C. § 1915(g) prior to filing his suit, and Plaintiff's allegations do not show that he is in imminent danger of serious physical injury, which would except him from the three strikes rule. Plaintiff's current case alleges that he was denied access to the courts, that Defendant Overstreet retaliated against him by filing false rules violation reports, and that Defendants Knigge and Orth subjected him to arbitrary and capricious punishment. (Dkt. 20, p. 21.)
The Court is authorized to review a litigant's in forma pauperis status "at any time" during the pendency of a case. 28 U.S.C. § 1915(e)(2). The "three strikes" provision of the in forma pauperis statute, 28 U.S.C. § 1915(g), 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 Andrews v. King, 398 F.3d 1113 (9th Cir. 2005), the United States Court of Appeals for the Ninth Circuit explained the analysis used to determine whether an inmate's case is subject to the three strikes rule:
[W]e hold that if defendants challenge a prisoner-plaintiff's IFP status, then the initial production burden rests with the defendants. 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." § 1915(g). In some instances, the district court docket records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike. However, in many instances, the docket records will not reflect the basis for the dismissal. In these instances, the 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 that a prior case was dismissed because it was "frivolous, malicious or fail[ed] to state a claim." § 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.
Plaintiff originally filed this action in the California state court system. It was removed to federal court by Defendant Iserman, and, therefore, Defendant Iserman was required to pay the $350 filing fee. (Dkt. 1 & 2.) Plaintiff was granted in forma pauperis status because he was a prisoner. The magistrate judge later mistakenly ordered Iserman to be served with process, which was accomplished by the U.S. Marshal. The other Defendants accepted service of process.
Defendants point to eight different cases in which Plaintiff has
been assessed a strike. The Court has reviewed the following cases and
finds at least four are frivolous or malicious: (1) Carrea Christopher
Jr. v. Los Angeles County, C.D. Cal. No. 2:00-cv-09542-CAS-MLG, where
Plaintiff had an opportunity to amend his complaint, and where
the magistrate judge noted: "[a] review of both the original and
first amended complaints clearly reveals that plaintiff can prove no
set of facts in support of the claim that would entitle plaintiff to
relief," which was adopted by the district court, ending in dismissal
of the case with prejudice. (Dkt. 33, Ex. A & B); (2) Carrea v.
University of Southern California, C.D. Cal. Case No.
03-cv-4317-UA-MAN, where the magistrate judge recommended dismissal
because the case was "legally and/or factually frivolous," and the
recommendation was adopted and the case dismissed (Exhibit G, Dkt.
33-13; see Order at Dkt. 2 in 2:03-cv-04371-UA-MAN); (3) Carrea v.
University of San Diego, S.D. Cal. Case No. 03-cv-01151-BTM-BEN,
dismissed with prejudice for failure to state a claim (Exhibit F, Dkt.
33-12; see Order at Dkt. 3 in 3:03-cv-01151-BTM-BEN); and (4)
v. San Diego County, S.D. Cal. Case No. 09-cv-0371-W-BLM, in
which the complaint was dismissed as frivolous and duplicative of
another case Plaintiff was already litigating (Dkt. 33, Ex. N). In
addition, Defendants furnish a copy of a report showing that Plaintiff
has been declared a vexatious litigant in the California state courts.
(Dkt. 33, Ex. Q.)
A complaint may be declared exempt from the three strikes bar if its allegations show that the plaintiff "is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). There is no indication in the record that Plaintiff is in imminent danger of serious physical injury. Therefore, this exception does not apply.
Accordingly, the Court will grant Defendants' Motion to Revoke Plaintiff's in Forma Pauperis Status. Because the fee has already been paid, this action will ...