Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Curtis Lee Henderson, Sr v. G. Rodriguez

June 17, 2011

CURTIS LEE HENDERSON, SR.,
PLAINTIFF,
v.
G. RODRIGUEZ, DEFENDANT.



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

FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANT'S MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS BE DENIED OBJECTIONS DUE WITHIN FOURTEEN (DOC. 74) DAYS

I. Background

Plaintiff Curtis Lee Henderson, Sr. ("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. This action is proceeding on Plaintiff's complaint, filed February 6, 2008, against Defendant G. Rodriguez for retaliation in violation of the First Amendment. Pending before the Court is Defendant's motion to revoke Plaintiff's in forma pauperis status, filed April 25, 2011. Def.'s Mot., Doc. 74. Plaintiff filed his opposition on May 31, 2011. Pl.'s Opp'n, Doc. 79. Defendants filed their reply on June 8, 2011. Defs.' Reply, Doc. 81. The matter is submitted pursuant to Local Rule 230(l).

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 February 12, 2008. Doc. 4. Defendant contends that Plaintiff has accrued three strikes pursuant to § 1915(g) and is thus ineligible to proceed in forma pauperis. Defs.' Mem. P. & A. Mot. Dismiss 2:23-5:5. 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. Henderson v. Davis , Case No. 1:99-cv-05237-AWI-DLB PC (E.D. Cal.). The complaint was dismissed on December 6, 1999, with leave to amend. When Plaintiff did not file an amended complaint, the action was dismissed in its entirety on March 29, 2000.

2. Henderson v. Hamren , Case No. 1:99-cv-05957-AWI-DLB PC (E.D. Cal.). After Defendants moved to dismiss, the Magistrate Judge issued a Findings and Recommendation that the complaint failed to state a claim as to any named defendant. The court adopted the findings and recommendations, and dismissed the action on December 22, 2000. 3 Henderson v. Small , Case No. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.