Plaintiff is a California prisoner proceeding pro se and in forma pauperis (IFP) with an action for violation of civil rights under 42 U.S.C. § 1983. Several matters are now pending before the court and will be addressed in order below.
I. Defendants' Motion To Have Plaintiff's In Forma Pauperis Status Revoked Defendants' have filed a motion seeking to have plaintiff's IFP status revoked pursuant to 28 U.S.C. § 1915(g). That statue reads as follows:
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 can be granted, unless the prisoner is under imminent danger of serious physical injury.
"[T]he plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a prisoner has used his three strikes." Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999).
For purposes of § 1915(g), the court must determine whether plaintiff has, on three or more occasions prior to the filing of this new action, brought a civil action or appeal that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief could be granted. Where a court denies a prisoner's application to file an action without prepayment of fees on the grounds that the submitted complaint is frivolous, malicious or fails to state a claim upon which relief may be granted, the complaint has been "dismissed" for purposes of § 1915(g). O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).
Defendants point to five cases which they assert qualify as so-called "strikes" against plaintiff under § 1915(g).*fn1 The court agrees that Hollis v. Villanueus, 3:07-cv-04538 THE, dismissed by the United States District Court for the Northern District of California on February 2, 2009, for "failure to state a claim" (Doc. No. 11)*fn2 counts as a "strike" for purposes of applying § 1915(g). That dismissal occurred well before plaintiff brought this action on June 8, 2009, by submitting his complaint to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 270 (1988) (notice of appeal in habeas action deemed filed on the day the habeas petitioner handed the notice to prison officials for mailing).
The court also agrees that Hollis v. Mazon-Alec, 1:03-cv-06842 REC DLB P from the Fresno division of this court constitutes a second "strike" under § 1915(g). In that case, on December 1, 2004, the assigned magistrate judge recommend dismissal of plaintiff's third amended complaint without leave to amend because plaintiff failed to state a claim upon which relief could be granted despite having previously been informed of the deficiencies in his prior complaints filed in that action. That recommendation was adopted on January 27, 2005 and the case was dismissed for failure to state a claim upon which relief could be granted .
The other three cases identified by defendants, however, do not qualify as strikes under § 1915(g). The appeal of Hollis v. Villanueus, Ninth Circuit Case No. 09-15523, was dismissed on August 26, 2009 (Doc. No. 9) after this action was brought by plaintiff. Furthermore, that appeal was dismissed for failure to prosecute, not for failure to state a claim or because the appeal was frivolous or malicious.
The case Hollis v. Evans, 3:07-cv-05389 THE, was a habeas action brought in the United States District Court for the Northern District of California. Habeas actions generally can not constitute strikes. Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). There is a limited exception to this rule:
We recognize, however, that some habeas petitions may be little more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to avoid the penalties imposed by 28 U.S.C. § 1915(g). In such cases, the district court may determine that the dismissal of the habeas petition does in fact count as a strike for purposes of 1915(g).
Id. at 1123 n. 12. However, the exception noted by the court in Andrews is not applicable here because the district court judge who dismissed Hollis v. Evans did not find that plaintiff presented his claims in a habeas action rather than in a § 1983 action to avoid any penalty or a more onerous filing requirement applicable in a § 1983 action, such as the higher filing fee. See December 3, 2007 Order (Doc. No. 4). Furthermore, defendants fail to point to anything suggesting that this court should find that plaintiff's purpose in bringing his petition in Hollis v. Evans as a habeas action was to avoid a penalty or requirement associated with a § 1983 action.
Finally, the appeal of the dismissal of Hollis v. Evans, Ninth Circuit Case No. 08-15037, was, again, dismissed due to plaintiff's failure to prosecute that appeal (Doc. No. 11) which is not a ground qualifying as a"strike" under § 1915(g). Andrews, 398 F.3d at 1122.
Because defendants fail to point to a third "strike" necessary for a determination by this court that plaintiff "struck out" under 28 U.S.C. § 1915(g) before he filed his complaint in this action, defendants' ...