FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. Defendants Braga and Campbell's ("defendants") move to revoke plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g) and dismiss this action. Dckt. No. 81. Plaintiff filed an opposition, a supplemental opposition and two requests for judicial notice; defendants filed a reply. Dckt. Nos. 83, 86, 88, 91, 92. As discussed below, the court finds that defendants have not shown that at least three of plaintiff's previous actions count as "strikes" within the meaning § 1915(g), and therefore recommends that defendants' motion be denied.
This action proceeds against defendants Braga, Campbell, and Robinson
on plaintiff's due process claims arising out of alleged disciplinary
proceedings relating to a possession of a weapon charge against
plaintiff. Dckt. Nos. 19, 26. Plaintiff originally filed this action
in state court, on or around November 24, 2008. See Dckt. No. 1
(Notice of Removal, Ex. 1). On March 18, 2009, defendant Braga removed
the action to this court and paid the $350 filing fee.*fn1
See Dckt. No. 1. Thereafter, plaintiff requested leave to
proceed in forma pauperis, which the court granted. Dckt. Nos. 28, 31.
Accordingly, the court ordered the United States Marshal to serve the
operative complaint on defendants Robinson and Campbell, without
prepayment of costs. Dckt. No. 38. See 28 U.S.C. § 1915(d) ("The
officers of the court shall issue and serve all process, and perform
all duties in [proceedings in forma pauperis]"); Fed. R. Civ. P.
4(c)(3) ("[T]he court may order that service be made by a United
States marshal or deputy marshal . . . if the plaintiff is authorized
to proceed in forma pauperis under 28 U.S.C. § 1915 . . . ."). The
United States Marshal served Campbell, but was unable to locate
defendant Robinson based on the information provided by plaintiff.
Dckt. No. 45, 49.
Defendants request that the court revoke plaintiff's in forma pauperis status because plaintiff has had at least three prior actions dismissed as frivolous, malicious, or for failure to state a claim, and the allegations in plaintiff's complaint do not show that he is or was in imminent danger of immediate physical injury. Section 1915(g) provides that:
In no event shall a prisoner bring a civil action or appeal . . . 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). Pursuant to § 1915(g), a prisoner with three "strikes," meaning prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed as frivolous, malicious, or for failure to state a claim, cannot proceed in forma pauperis. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). Defendants bear the initial burden of producing documentary evidence that allows the court to conclude that the plaintiff has suffered three strikes. Id. at 1120 (because docket records will not always reflect the basis for the dismissal, defendants "must produce court records or other documentation that will allow the district court to determine that a prior case was dismissed because it was 'frivolous, malicious or failed to state a claim.'"). If defendants meet this burden, the burden then shifts to the prisoner plaintiff, who must either explain why a prior dismissal should not count as a strike or show that he satisfies the "imminent danger of serious physical injury" exception to § 1915(g). See id.
In support of their motion, defendants' request that the court take judicial notice of various court records from cases filed by plaintiff. Dckt. No. 82. Defendants' request is hereby granted. See Fed. R. Evid. 201(b) (allowing a court to take judicial notice of a fact "not subject to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"), (d); see also MGIC Indem. Co. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
First, defendants point to a June 30, 2004 order from the United States District Court for the Central District of California, which revoked plaintiff's in forma pauperis status in Abreu v. Ramirez, Case No. 02-cv-4093 GAF ("Ramirez"). See Dckt. No. 82, Ex. B. In that order, the court found that plaintiff had suffered at least three strikes for purposes of § 1915(g). Id. These included: (1) Abreu v. Ayers, Case No. 98-cv-3099-THE, 1998 U.S. Dist. LEXIS 13145 (N.D. Cal. Aug 14, 1998) ("Ayers"); (2) Abreu v. Tweed, Case No. 98-cv-3605-THE, 1998 U.S. Dist. LEXIS 15292 (N.D. Cal. Sept. 28, 1998) ("Tweed"); and (3) Abreu v. Small, Case No. 02-cv-685-IEG ("Small"). See id.; Dckt. No. 91, Appx. A.
Evidence introduced with defendants' reply brief shows that plaintiff was a prisoner when he initiated each of the above-listed actions, and that the first two actions, Ayers and Tweed, were dismissed for failure to state a claim. See Dckt. No. 91, Appx. A.Therefore, it appears that Ayers and Tweed should qualify as strikes for purposes of § 1915(g). The same is not true for Small, however. In Small, the court dismissed plaintiff's complaint for failure to state a claim, granted plaintiff leave to amend and warned plaintiff that if he filed an amended complaint that also failed to state a claim upon which relief may be granted, "it may be dismissed without further leave to amend and may hereafter be counted as a 'strike' under 28 U.S.C. § 1915(g)." See id. Thus, as to Small, defendants have produced documentary evidence in the form of an order dismissing plaintiff's complaint with leave to amend; they have not shown that the action itself was dismissed for failure to state a claim, or as frivolous or malicious. As the court cannot determine why the Small actionwas ultimately dismissed, the court cannot count it as a strike.
In Ramirez, the court also listed another ten actions that plaintiff had initiated, along with the reason why each case was dismissed. See Dckt. No. 82, Ex. B. Defendants reproduce that list in their motion. See Dckt. No. 81 at 6-7. Without providing any of the underlying court orders, and without providing any argument as to why any of the ten cases should count as strikes, defendants urge the court to find that plaintiff "has accumulated a sufficient number of 'strikes' . . . ." Id. at 7. However, defendants provide no basis from which the court could conclude that any of the ten cases qualify as strikes within the meaning of § 1915(g). Based on the list, it appears that none of the ten cases were dismissed as frivolous, malicious, or for failure to state a claim.*fn2 See id. at 6-7 (listing reasons for dismissal as failure to pay filing fee, failure to exhaust administrative remedies, voluntary dismissal, "reason . . . unknown," failure to prosecute, lack of jurisdiction, and failure to exhaust state court remedies).
Next, defendants list seven additional actions initiated by plaintiff that they contend qualify as strikes. Dckt. No. 81 at 7-8. However, defendants have not shown that any of these actions count as strikes. The first three actions listed by defendants were dismissed for failure to obey a court order. Dckt. No. 81 at 7; Dckt. No. 82, Exs. C, D, E. The fourth action was a petition for mandamus relief that the appellate court dismissed for unknown reasons not discernable from the record before this court. Dckt. No. 81 at 7; Dckt. No. 82, Ex. F. The fifth action was a habeas proceeding, see supra p.4, n.2, and the sixth and seventh actions were not dismissed until after defendant Braga removed this action from state court. Dckt. No. 81 at 7-8; Dckt. No. 82, Exs. G, H, I. On this record, none of the seven actions listed by defendants qualify as strikes.
Based on the above, the court finds that defendants have not met their burden of showing that three strikes rule applies to plaintiff.*fn3 Accordingly, it is HEREBY RECOMMENDED that defendants' motion to revoke plaintiff's in forma pauperis status and dismiss this action, be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to ...