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Edward Thomas v. M. Beutler

November 6, 2012

EDWARD THOMAS, PLAINTIFF,
v.
M. BEUTLER, ET AL., DEFENDANTS.



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

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner, proceeds pro se with a civil rights complaint filed pursuant to 42 U.S.C. § 1983. Defendants have moved for an order revoking plaintiff's in forma pauperis (IFP) status under the three-strikes provision of the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g). (Dkt. No. 66.) This court previously denied a similar motion by defendants to revoke plaintiff's IFP status. (Dkt. No. 22.) Defendants assert that subsequent events warrant this renewed motion. Plaintiff opposes the motion. (Dkt. No. 70.) Plaintiff has also filed a third motion for court order to compel discovery (Dkt. No. 68) and a motion for sanctions and extension of time to serve a subpoena (Dkt. No. 69).

I. Defendants' Motion for Order Revoking IFP Status

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 section 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). Section 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 was dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). Defendants have 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 this 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.

"[A] dismissal must be final before it counts as a 'strike' for § 1915(g) purposes." Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011). 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.

Defendants premise their motion on the following three actions filed by plaintiff of which the court takes judicial notice. Each will be examined in turn.

1. Thomas v. Terhune No. 1:03-cv-5467 REC SMS (E.D. Cal.)

This district court action was dismissed for failure to state a claim. As this court previously determined in denying defendants' first motion to revoke plaintiff's IFP status, this dismissal constitutes a strike. See Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 893-94 (9th Cir. 2011) ("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.'")

2. Thomas v. Terhune No. 06-15901 (9th Cir.)

In this appeal of No. 03-cv-5467 (E.D. Cal.), the district court certified that plaintiff's appeal was "not taken in good faith" and revoked his IFP status. The Ninth Circuit confirmed that plaintiff was not entitled to IFP status and ordered him, upon payment of the filing fee, to show good cause why the court should not summarily affirm the district court's judgment for failure to state a claim. On September 8, 2006, the Ninth Circuit dismissed No. 06-15901 for failure to prosecute after plaintiff failed to pay the filing fee and also failed to show good cause why the judgment challenged in the appeal should not be summarily affirmed.

The undersigned previously found that No. 03-5467 did not constitute a strike since a dismissal for failure to prosecute does not fall within the plain language of section 1915(g). (Dkt. No. 22.) The Ninth Circuit has held, however, that when an action is dismissed for failure to pay the filing fee, (i.e., 'failure to prosecute') after the court revokes a plaintiff's IFP status, the dismissal counts as a 'strike' under section 1915(g). See O'Neil v. Price, 531 F.3d 1146, 1153-56 (9th Cir. 2008) ("[W]e hold that when a district court disposes of an in forma pauperis complaint 'on the grounds that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,' such a complaint is 'dismissed' for purposes of ยง 1915(g) even if the district court styles such dismissal as denial of the prisoner's application to file the action without prepayment of the full filing fee."); see also Benyamini v. Mendoza, 2012 WL 1378526 at *2 (E.D. Cal. 2012) ("[W]hen the appeal of ...


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