The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER (1) GRANTING DEFENDANTS' REQUEST FOR JUDICIAL NOTICE, (2) AND GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IFP STATUS AND DISMISS THE ACTION PURSUANT TO 28 U.S.C. § 1915(G) (Docs. 20 and 22)
Order Granting Defendants' Motion to Revoke IFP Status and Dismiss
Plaintiff Larry D. Thomas, a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on July 9, 2010. This action for damages is proceeding against Defendants Cervantes, Yates, Villa, Mangohig, and Gonzales for violation of the Eighth Amendment of the United States Constitution and for violation of California tort law.
On January 4, 2012, Defendants Cervantes, Yates, Villa, and Mangohig filed a motion seeking to revoke Plaintiff's in forma pauperis status, declare Plaintiff a three-strike litigant, and dismiss this action without prejudice.*fn1 28 U.S.C. § 1915(g). Plaintiff filed an opposition on January 31, 2012, and Defendants filed a reply on February 6, 2012. The matter has been submitted upon the record and the following order now issues. Local Rule 230(l).
The Prison Litigation Reform Act of 1995 (PLRA) was enacted "to curb frivolous prisoner complaints and appeals." Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Pursuant to the PLRA, the in forma pauperis statute was amended to include section 1915(g), a non-merits related screening device which precludes prisoners with three or more "strikes" from proceeding in forma pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at 1050. The statute 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).
In seeking the revocation of Plaintiff's in forma pauperis status, Defendants bear the burden of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). If Defendants meet their initial burden, Plaintiff must then demonstrate the dismissals should not count as strikes. Andrews, 398 F.3d at 1120.
Defendants argue that Plaintiff has had at least three dismissals which count as strikes under section 1915(g) and they have submitted the relevant court records for three cases.*fn2 Andrews, 493 F.3d at 1120. Plaintiff argues that he has incurred no dismissals which count as strikes.*fn3
A. Dismissal of One Action Pursuant to Rule 12(b)(6)
The first case is Thomas v. Rowland, case number 3:88-cv-01087-B (S.D. Cal.), which was dismissed on October 24, 1989, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. (Doc. 20, Def. Req. for Jud. Not., Ex. 1.)
Plaintiff does not dispute that the dismissal occurred, but he argues that the action was initiated more than twenty-two years ago under a discharged prison identification number and he was thereafter discharged from prison. Plaintiff also argues that in as much as the action was filed and dismissed prior to the enactment of PLRA in 1996, the dismissal does not count.
Plaintiff's arguments are unavailing. The passage of time, the discharge or deactivation of Plaintiff's prior prison identification number, and Plaintiff's discharge from prison after filing suit are irrelevant. Plaintiff's suit, brought when he was a prisoner, was dismissed for failure to state a claim, which falls squarely with the plain language of section 1915(g). In as much as the United States Court of Appeals for the Ninth Circuit has held that section 1915(g) applies retroactively to actions which were dismissed prior to the enactment of the PLRA in 1996, the dismissal of Thomas v. Rowland ...