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Edward Thomas v. Thomas Felker

June 8, 2012


The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action on September 3, 2009 and was granted in forma pauperis status on April 28, 2010. (Dkt. Nos. 1, 9.) On November 23, 2011, defendants filed a motion to revoke plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g) and dismiss this action. (Dkt. No. 53.) On April 18, 2012, the undersigned issued findings and recommendations finding that plaintiff was three-strikes barred and recommending that plaintiff be required to submit the filing fee for this action or face dismissal. (Dkt. No. 60.) On May 7, 2012, plaintiff filed objections to the findings and recommendations. (Dkt. No. 61.)

Upon further review, the undersigned will vacate its April 18, 2012 findings and recommendations and issue these amended findings and recommendations. As in the earlier findings, the undersigned concludes that plaintiff is three-strikes barred under section 1915(g).

However, as discussed below, one of the "strikes" the court previously relied on has been replaced by a different "strike."

I. Motion to Dismiss

28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However, [i]n 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.

28 U.S.C. § 1915(g).

In forma pauperis status may be acquired and lost during the course of litigation.

Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D.Cal., 1994), vacated on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g)) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999). 28 U.S.C. § 1915(g) should be used to deny a prisoner's in forma pauperis status only upon a determination that each action reviewed (as a potential strike) is carefully evaluated to determine that it was dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Defendant has the burden to "produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions ... dismissed because they were 'frivolous, malicious or fail[ed] to state a claim.'" Id., at 1120, quoting § 1915(g). Once defendants meet their initial burden, it is plaintiff's burden to explain why a prior dismissal should not count as a strike. Id. If the plaintiff fails to meet that burden, plaintiff's IFP status should be revoked under § 1915(g). Id.

In a recent case, Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011), the Ninth Circuit found that "a dismissal must be final before it counts as a 'strike' for § 1915(g) purposes." Thus, "a district court's dismissal of a case does not count as a 'strike' under § 1915(g) until the litigant has exhausted or waived his opportunity to appeal. This means a dismissal ripens into a 'strike' for § 1915(g) purposes on the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not." Id. at 1100 (internal quotation omitted.) "If a prisoner does not appeal a dismissal, the dismissal counts as a 'strike' from the date when his time to file a direct appeal expired." Id., n.6.

II. Discussion

Defendants contend in their motion that plaintiff's litigation history shows that he has six strikes. Per defendants' request, the undersigned takes judicial notice of the following cases*fn1

1. Thomas v. Terhune, No. 1:03-cv-5467 (E.D. Cal.), dismissed April 18, 2006 for failure to state a claim. (Dkt. No. 54, Ex. 1.)

2. Thomas v. Lamarque, No. 3:02-cv-1044 (N.D. Cal. ), dismissed without prejudice to filing a ยง 1983 complaint on March 22, 2002, as plaintiff had improperly challenged conditions of confinement in a ...

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