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Marcus R. Ellington v. Clark

May 19, 2011

MARCUS R. ELLINGTON,
PLAINTIFF,
v.
CLARK, ET AL.,
DEFENDANTS.



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

ORDER REQUIRING DEFENDANTS TO PROVIDE SUPPLEMENTAL BRIEFING IN SUPPORT OF THEIR MOTION FOR ORDER TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (DOC. 70) RESPONSE DUE WITHIN THIRTY DAYS

I. Background

Plaintiff Marcus Ruben Ellington ("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, Title II of the Americans with Disabilities Act, and the Rehabilitation Act of 1973. This action is proceeding on Plaintiff's first amended complaint against Defendants Akanno and Kern Valley State Prison. Pending before the Court is Defendants' motion for an order revoking Plaintiff's in forma pauperis status, filed October 27, 2010. Defs.' Mot., Doc. 70. Plaintiff filed his opposition on March 28, 2011. Pl.'s Opp'n, Doc. 79. Defendants filed their reply on March 31, 2011. Defs.' Reply, Doc. 80.

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 and 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)). 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 December 11, 2009. 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 4:1-6:14. Defendants also contend that Plaintiff does not qualify for in forma pauperis status under the imminent danger exception. Id. at 6:2-14. Defendants move for revocation of Plaintiff's in forma pauperis status.

A. Strikes Pursuant To § 1915(g)

Defendants contend the following are strikes pursuant to § 1915(g):

1. Ellington v. Lucine, et al., (N.D. Cal. Case No. 5:97-cv-20974-RMW) (Dismissed on October 13, 1998, for failure to state a claim.);

2. Ellington v. Garcia, et al., (S.D. Cal. Case No. 3:99-cv-01193-JFS) (Motion to proceed IFP denied and case dismissed on August 2, 1999; the court further ordered that Plaintiff "may file no further civil actions or appeals pursuant to the in forma pauperis provisions of 28 U.S.C. § 1915 while incarcerated unless he is in 'imminent danger of serious physical injury.'");

3. Ellington v. Small, et al., (S.D. Cal. Case No. 3:99-cv-01265-JFS) (Motion to proceed IFP denied and case dismissed on August 11, 1999; the court further ordered that Plaintiff "may file no further civil actions or appeals pursuant to the in forma pauperis provisions of 28 U.S.C. ยง 1915 while ...


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