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
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).
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.
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. ...