UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
July 7, 2011
ROBERT T. FORTE,
MATTHEW CATE, ET AL.,
The opinion of the court was delivered by: Lawrence J. O'Neill United States District Judge
ORDER DENYING PLAINTIFF MOTION TO PROCEED IFP PURSUANT SECTION 1915(g) AND DISMISSING ACTION WITHOUT PREJUDICE (Docs. 1, 2)
I. Procedural History
Robert T. Forte ("Plaintiff") is a state prisoner proceeding pro
se and in forma pauperis ("IFP") in this civil rights action filed
pursuant to 42 U.S.C. § 1983. On May 16, 2011, Plaintiff filed his
original complaint. (Doc. 1). On May 23, 2011, the Magistrate Judge
issued an Order to Show Cause as to why Plaintiff's motion for to
proceed IFP should be denied and why this case should not be dismissed
without prejudice as a Rule 11(b)(3) sanction for misrepresenting
Plaintiff's litigation history on his complaint. *fn1
(Doc. 4). In the Order to Show Cause, the Magistrate
Judge gave Plaintiff thirty (30) days to respond. On June 30, 2011,
Plaintiff filed an untimely response to the Order to Show Cause. (Doc. 7).
II. Three Strikes
A review of the record of actions and appeals filed by Plaintiff in the United States District Court and in the Ninth Circuit reveals that Plaintiff filed three or more actions or appeals that were dismissed as frivolous, malicious or for failing to state a claim upon which relief may be granted.
Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides that:
[i]n no event shall a prisoner bring a civil action . . . 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. 28 U.S.C. § 1915(g). *fn2
Determining whether Plaintiff's actions and appeals count
as strikes under section 1915(g) requires the Court to conduct a
"careful examination of the order dismissing an action, and other
relevant information," to determine if, in fact, "the action was
dismissed because it was frivolous, malicious or failed to state a
claim." Andrews v. King , 398 F.3d 1113, 1121 (9th
The Court takes judicial notice that Plaintiff has two prior
actions dismissed for being frivolous or for failing to state a claim
for which relief can be granted under section 1983. Those cases are:
Forte v. Dept of Corr & Rehab Inmate Appeals Branch, et
al. , 2:09-cv-03713-UA-AJW (C.D. Cal.) (dismissed July 14,
2009, for failure to state a claim) and Forte v. Dept of
Corrections & Rehabilitation, et al. , 2:10-cv-00575-UA-AJW
(C.D. Cal.) (dismissed March 23, 2010, for failure to state a claim).
Generally, a dismissal for failure to prosecute does not fall within the plain language of Section 1915(g). However, a court is to carefully evaluate the substance of the dismissal and where the merits of the claim have been determined to be frivolous or malicious, it counts as a strike. See Andrews v. King , 398 F.3d 1113, 1121 (9th Cir. 2005); see also O'Neal v. Price , 531 F.3d 1146, 1152-53 (9th Cir. 2008) (interpreting the term "dismissed" under section 1915(g) to include when a trial court denies request to file an action without prepayment of the filing fee on the ground that complaint is frivolous and then subsequently terminates the complaint). Moreover, section 1915(e)(2) requires appellate courts to dismiss all appeals that are frivolous, malicious or fails to state a claim on which relief may be granted. 28 U.S.C. 1915(e)(2); see also O'Neal v. Price , 531 F.3d 1146, 1153 (9th Cir. 2008); Thompson v. Drug Enforcement Admin. , 492 F.3d 428, 436 (D.C. Cir. 2007).
The Court takes judicial notice of the following appellate case:
Forte v. Barber, et al. , No. 10-55684 (9th Cir.)
(dismissed June 28, 2010). In Forte v. Barber , the
Ninth Circuit found that the appeal was frivolous and denied
Plaintiff's request to proceed in forma pauperis. Forte v.
Barber, et al. , No. 10-55684 (order dated May 27, 2010).
Since Plaintiff did not pay the required filing fee, the appeal was
dismissed for failure to prosecute. Forte v. Barber, et
al. , No. 10-55684 (9th Cir.) (dismissed June 28, 2010).
Accordingly, the Court finds that appellate case Forte v.
Barber counts as a strike.
Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff filed this action on May 16, 2011. *fn3 Therefore, the Court finds that Plaintiff should be precluded from proceeding in forma pauperis since, at the time the complaint is filed, Plaintiff has not demonstrated that he was under imminent danger of serious physical injury. Moreover, the Court finds that Plaintiff's action should be dismissed to allow Plaintiff to refile with full payment of the filing fee. See Dupree v. Palmer , 284 F.3d 1234, 1236 (11th Cir. 2002) (finding that denial of in forma pauperis status under § 1915(g) mandated dismissal since a prisoner must pay the filing fee at the time of initiating the suit).
Because Plaintiff has on three prior occasions brought civil actions that have been dismissed as frivolous or for failure to state a claim, the Court HEREBY ORDERS:
1. Plaintiff's motion to proceed in forma pauperis is DENIED pursuant to 28 U.S.C. § 1915(g);
2. This action is DISMISSED without prejudice (Doc. 1).
IT IS SO ORDERED.