The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis (IFP) in an action under 42 U.S.C. § 1983. Defendants have moved to revoke plaintiff's IFP status under the three-strikes provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g).
The three-strikes provision of the PLRA empowers a court to deny IFP status to a litigant who has had three actions "dismissed on the grounds that [they are] frivolous, malicious, or fail to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). An action meets this standard if it is "based on an indisputably meritless legal theory" or its "factual contentions are clearly baseless. Examples of the former class are claims against which it is clear that the defendants are immune from suit and claims of infringement of a legal interest which clearly does not exist." Neitzke v. Williams, 490 U.S. 319, 327 (1989) (internal citation omitted).
Defendants who challenge a plaintiff's IFP status bear the initial burden of producing documentation of at least three prior dismissals that constitute "strikes" against the plaintiff. In meeting this burden, the defendants may not simply rest on the fact of dismissal.
Rather, the 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 fail[ed] to state a claim."
Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). Once defendants have met this initial burden, it becomes the plaintiff's burden to explain why a prior dismissal should not count as a strike. It is plaintiff's ultimate burden to persuade the court that § 1915(g) does not apply. Id.
The Ninth Circuit in Andrews broadly defined a district court's task in determining whether a particular dismissal counts as a strike. It made clear that an order of dismissal is not, by itself, enough:
Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner's IFP status only when, after careful evaluation of an order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim.
Id. at 1121 (internal citations omitted). Andrews thus carries an express mandate on district courts to discover the substantive reasons an IFP plaintiff's prior cases were dismissed. Therefore a district court's central analysis in deciding whether the plaintiff is precluded from proceeding IFP under § 1915(g) must include "reviewing the orders dismissing those actions and other relevant information." Id.
Defendants have submitted five dismissals of plaintiff's prior cases as strikes that preclude him from proceeding IFP. The court will examine each in turn.
1. Thomas v. Terhune, Case No. 1:03-cv-5467 REC SMS (E.D.Cal.) and appeal The court dismissed Thomas v. Terhune after allowing plaintiff to file an amended complaint. The ground for dismissal was failure to state a claim against any of the named defendants. See Thomas v. Terhune, Case No. 1:03-cv-5467 REC SMS (E.D. Cal.), Findings and Recommendations at 7 (Docket No. 24). The court also found that the failure to state a claim could not be cured by amendment. Id. The findings and recommendations were adopted in full and judgment for failure to state a claim was entered on April 26, 2006. See id. (Docket No. 27).
"The three-strikes rule counts a dismissal as a strike if the court held that the action 'fails to state a claim upon which relief may be granted.'" Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 893-94 (9th Cir. 2011). Defendants are correct that the dismissal of Thomas v. Terhune fits that criterion. Therefore, the judgment in Thomas v. Terhune counts as plaintiff's first strike for purposes of defendants' instant motion.
Defendants are not correct, however, in submitting the Ninth Circuit's dismissal of plaintiff's appeal in Thomas v. Terhune. The appeal was dismissed for failure to prosecute. See Thomas v. Terhune, Order of USCA (Docket No. 39). "Generally, a dismissal for failure to prosecute does not fall within the plain language of section 1915(g), as such dismissal is not equivalent to a dismissal on the grounds that an action is 'frivolous, malicious, or fails to state a claim upon which relief may be granted." Vaught v. Sandoval, 2011 WL 1253747 at *2 (E.D. Cal.), citing Butler v. Department of Justice, 492 F.3d 440, 443 (D.C. Cir. 2007) (dismissal for failure to prosecute without regard to merits of claim does not constitute a ...