The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: defendant Baker's November 23, 2010, motion for an order revoking plaintiff's in forma pauperis status, pursuant to 28 U.S.C. § 1915(g), to which plaintiff has not filed any opposition, despite having been granted extensions of time to do so, including an express direction to file any opposition, cautioning plaintiff that failure to do so would be deemed a waiver of opposition*fn1 ; and plaintiff's motion to supplement his request for appointment of counsel, filed on February 3, 2011. Plaintiff's January 19, 2011, motion for appointment of counsel was, however, previously denied on January 28, 2011; the belated motion to supplement the request is, therefore, denied. In addition, by Order, filed on January 28, 2011, plaintiff was ordered, inter alia, to show good cause why unserved defendant Byrd should not be dismissed without prejudice from this action, pursuant to Fed. R. Civ. P. 4(m). Other than once again objecting to his being denied appointment of counsel, plaintiff has not responded to this order, thus failing to show the requisite good cause. Therefore, for the reasons set forth in detail in the court's Order, filed on January 28, 2011, the court will recommend dismissal without prejudice of the unserved defendant Byrd from this action.
Motion to Revoke In Forma Pauperis Status
"Three Strikes" Contention 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However, [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.
In forma pauperis status may be acquired and lost during the course of litigation.
Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g)) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999). 28 U.S.C. § 1915(g) should be used to deny a prisoner's in forma pauperis status only upon a determination that each action reviewed (as a potential strike) is carefully evaluated to determine that it was dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005). Defendant has the burden to "produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions ... dismissed because they were 'frivolous, malicious or fail[ed] to state a claim.'" Id., at 1120, quoting § 1915(g).
Actions filed and/or dismissed prior to the enactment of the Prison Litigation Reform Act on April 26, 1996, are to be evaluated to determine whether they qualify as strikes: "the plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the PLRA to determine when a prisoner has used his three strikes." Rodriguez v. Cook, 169 F.3d 1176, 1181, citing Tierney v. Kupers, 128 F.3d 1310, 1311-1312 (9th Cir. 1997).*fn2 Dismissal of an appeal as frivolous after a district court dismissal on grounds that the action was frivolous counts as a separate strike. Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). However, Adepegba qualifies that insofar as affirmance does not go to the merits but only finds no error at district court level, affirmance should not count as separate strike.*fn3 Id. On the other hand, when the appeal is frivolous on a separate ground or when the appeal of a district court dismissal as frivolous is, itself, frivolous, then the appeal dismissal is also a strike. Id. at 388. See also Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Moran v. Sondalle, 218 F.3d 647, 651-52 (7th Cir. 2000) (both noting that frivolous appeals count as a strike). Dismissals as frivolous, malicious, or for failure to state a claim with or without prejudice may count as strikes. O'Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008). \\\\
The court takes judicial notice*fn4 of the national
pro se "three strikes" database, and the cases therein cited, which a
Ninth Circuit committee has directed this court to access for PLRA
three-strikes screening purposes; two cases therein are listed for
plaintiff: Benyamini v. Anderson, et al., 1:07-cv-01596 OWW GSA P,
dismissed for failure to state a claim on May 13, 2009,*fn5
and Benyamini v. Simpson, et al., 2:08-01552 GEB DAD P,
dismissed on July 8, 2009, for failure to state a claim.*fn6
Defendant also requests judicial notice of Benyamini v.
Kretch, et al., 2:09-cv-00170 GEB DAD P, which request is granted. In
that case, the court dismissed the complaint with leave to amend in
thirty days, noting that it was "unable to determine whether the
current action is frivolous or fails to state a claim for relief." See
Order, filed on January 28, 2009 (docket # 4), pp. 4, 6; see also,
defendant's Exhibit H (docket # 24-3, pp. 42, 44). Thereafter, by
Order filed on August 25, 2009 in 2:09-cv-00170 GEB DAD P, the case
was dismissed without prejudice, for failure to prosecute, pursuant to
Local Rule 11-110 and Fed. R. Civ. P. 41(b)*fn7 , when
plaintiff failed to file an amended complaint, notwithstanding having
been granted at least an additional one hundred and twenty days to do
so.*fn8 As the basis for the third
strike, defendant Baker observes that in Peralta v. Martel, 2010 WL
2629060 *5 (E.D. Cal. 2010); 2:08-cv-00530 HWG, that although a prior
action had been dismissed without prejudice for failure to prosecute
after plaintiff's first amended complaint had been dismissed with
leave to amend, plaintiff having failed to file a further amended
complaint, the district judge determined the earlier dismissal of the
complaint for failure to state a claim counted as a strike under
1915(g) because the earlier court's reasoning that the first amended
complaint failed to state a claim constituted "a fully sufficient
condition for dismissing plaintiff's complaint." Motion, pp. 2-3;
Peralta v. Martel, 2010 WL 2629060 *5, *6; Case No. 2:08-cv-00530 HWG,
pp. 10-11, 13 . On that basis, the undersigned finds that,
analogously, Benyamini v. Kretch, et al., 2:09-cv-00170 GEB DAD P,
constitutes a third strike for the instant plaintiff, pursuant to 28
U.S.C. § 1915(g).
Nor is the instant case subject to the exception for plaintiffs subject to "imminent danger of serious physical injury" (§ 1915(g)), at the time of filing his January 4, 2011,*fn9 complaint, plaintiff alleged that, while medication was being passed out on April 16, 2006, the cell door closed on his head and defendant Baker "would not budge the door for a good one minutes" (while as yet unserved defendant did "nothing but gig[g]le"). Complaint, p. 9. Defendant Baker finally opened the door. Id. Defendant Baker is correct that plaintiff's allegation simply does not make a claim that at the time of the filing of his complaint, which the court notes was in 2010, several years after the 2006 incident at issue, that he was in immiment danger of serious physical injury, nor does plaintiff so allege. Motion, p. 4. Further, plaintiff, having waived opposition in failing to file a response to the motion, does not offer any counter-argument.
Accordingly, IT IS ORDERED that plaintiff's belated February 3, 2011 (docket # 34), motion to supplement his request for appointment of counsel, which request for appointment of counsel was previously, ...