IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 2, 2013
REYERSBACH, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983.
The PLRA's "three strikes" provision, found at 28 U.S.C. § 1915(g), provides as follows:
In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained . . ., brought an action . . . in a court of the United States that was dismissed on the ground 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. Id.
Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the reasons set forth in the statute, such "strikes" preclude the prisoner from proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas petitions do not count as "strikes" under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights action, the district court may conclude that it counts as a "strike." See id. at n.12.
A review of the court's records reflects that plaintiff has had three
or more cases dismissed as "strikes" under § 1915(g).*fn1
Three such cases are: Ramey v. County of Fresno,
1:98-CV-5450-AWI-DLB-P; Ramey v. Dr. Loo, 1:98-CV-6327-OWW-SMS-P, and
Ramey v. County of Fresno, 1:08-CV-0832-OWW-GSA-P. Because plaintiff
has had three or more cases dismissed as "strikes," and because a
review of the complaint does not suggest the applicability of an
exception, he cannot proceed without pre-payment of the statutory
Rather than dismiss the entire action without prejudice to re-filing the action upon pre-payment of fees at the time the action is re-filed, see Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998); Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999); Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002); Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002), the court will recommend in this case that plaintiff be provided an opportunity to proceed with the current action by paying the full filing fees.
Based on the foregoing, the undersigned recommends that:
1. Plaintiff's in forma pauperis status be revoked; and
2. Plaintiff be required to pay the full statutory filing fee before the current action may proceed further, subject to dismissal of the action for failure to do so.
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 14 days after being served with these findings and recommendations, any party may file written objections with the court. Responses to objections shall be filed within 14 days after service of objections. Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).