ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action brought under 42 U.S.C. § 1983. Defendants Smith and Sotak move to revoke plaintiff's in forma pauperis status. See Dckt. Nos. 40 (motion filed by Smith), 49 (Sotak's joinder in motion). Defendant Sotak also moves to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dckt. No. 50. For the following reasons, it is recommended that both motions be denied.
I. Motion to Revoke Plaintiff's In Forma Pauperis Status
Defendants request that the court revoke plaintiff's in forma pauperis status because plaintiff has had at least three prior actions dismissed as frivolous, malicious, or for failure to state a claim, and does not meet the "imminent danger" of immediate physical injury exception under section 1915(g). Defendants also contend that plaintiff's in forma pauperis status should be revoked because plaintiff's litigation practices demonstrate that he is an abusive filer. Dckt. No. 40, 49. Plaintiff filed an opposition and defendants filed a reply. Dckt. Nos. 44, 45. Thereafter, plaintiff filed an unauthorized "declaration" in opposition to defendants' motion, Dckt. No. 55, which defendant Smith moves to strike, Dckt. No. 56. The Local Rules provide only for a motion, an opposition, and a reply. E.D. Local Rule 230. Plaintiff neither sought nor obtained court approval before filing his declaration. Accordingly, the undersigned does not consider it in resolving defendants' motion.
Section 1915(g) provides that:
In no event shall a prisoner bring a civil action or appeal . . . 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.
Pursuant to section 1915(g) a prisoner with three "strikes," meaning prior cases or appeals, brought while the plaintiff was a prisoner that were dismissed as frivolous, malicious, or for failure to state a claim, cannot proceed in forma pauperis. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005); see also Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 893 (9th Cir. 2011) (dismissal for lack of subject-matter jurisdiction does not qualify as a strike for purposes of § 1915(g)).
Whether an action was dismissed because it was frivolous, malicious or failed to state a claim turns on an evaluation of the dismissal order and other relevant information. Id. at 1121; see also Moore, 657 F.3d at 895 (whether dismissal order counts as a strike depends on "reasonable interpretation" of order); O'Neal v. Price, 531 F.3d 1146, 1153-55 (9th Cir. 2008) (disposition of complaint, either with or without prejudice, constitutes a "dismissal" for purposes of section 1915(g)).
Defendants bear the initial burden of producing documentary evidence that allows the court to conclude that the plaintiff has suffered three strikes. Andrews, 398 F.3dat 1120 (because docket records will not always reflect the basis for the dismissal, 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 failed to state a claim.'"). If defendants meet this burden, the burden then shifts to the prisoner plaintiff, who must either explain why a prior dismissal should not count as a strike or show that he satisfies the "imminent danger of serious physical injury" exception to § 1915(g). See id. "[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of the 'imminent danger' exception to § 1915(g)." Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).
In this case, defendants point to five actions filed by plaintiff that they contend were dismissed as frivolous or malicious and to another five actions filed by plaintiff that they contend were dismissed for failure to state a claim.*fn1 Based on these dismissals, defendants submit that plaintiff has accumulated at least ten strikes for purposes of 28 U.S.C. § 1915(g). As discussed below, however, defendants fail to demonstrate that any of the ten actions qualify as strikes.
First, defendants contend that the following actions were dismissed as frivolous or malicious: (1) Bontemps v. Martinez, 4:95-cv-00766-SBA(N.D. Cal.); (2) Bontemps v. Charter Corporation, 4:95-cv-00254-SBA (N.D. Cal.); (3) Bontemps v. Jacobson,4:95-cv-00329-SBA (N.D. Cal.); (4) Bontemps v. Pilot, 4:95-cv-00052-SBA (N.D. Cal.); and (5) Bontemps v. Plummer, 3:94-cv-01244-SBA (N.D. Cal.). Defendants do not produce the actual dismissal orders for any of these actions. Rather, defendants produce printouts that list the docket entries for the actions and include abbreviated descriptions of those entries. Dckt. No. 40 (Req. for Jud. Notice "RJN")), Exs. 6-10. The printouts for the Martinez and Jacobson cases show only that those cases were dismissed when the court denied plaintiff's application to proceed in forma pauperis. Id., Exs. 6, 8. While an inference might be drawn that the application was denied for the reasons respondent suggests (lack of merit rather than indigency), without the order denying the application, the court cannot evaluate the text of the order to make the required determination. It is defendants' initial burden to produce documentary evidence that the plaintiff has incurred the three strikes. Andrews, 398 F.3dat 1120 Similarly, the printouts for Charter Corporation and Pilot show only that the court denied plaintiff's application to proceed in forma pauperis and that the cases were closed. Id., Exs. 7, 9. The printout for Plummer shows that the case was dismissed approximately one month after the court denied plaintiff's request for class certification and dismissed some of plaintiff's claims with prejudice. Id., Ex. 10. The printouts do not include the court's reasons for either denying plaintiff's applications to proceed in forma pauperis or for dismissing his cases. See id., Exs. 6-10. Courts dismiss cases for any number of reasons and frequently deny applications to proceed in forma pauperis for reasons other than a finding that the action is frivolous, malicious or fails to state a claim. Courts often deny applications to proceed in forma pauperis where they lack jurisdiction for reasons unrelated to the merits, or because of a defect in the application, such as an inadequate showing of indigency. Defendants' representation that these five actions were dismissed as frivolous or malicious is entirely unsupported and the court cannot just assume that any of the five actions was dismissed on those grounds. Accordingly, the court cannot conclude that any of these dismissals count as strikes.
Second, defendants contend that the following actions were dismissed for failure to state a claim: (1) Bontemps v. Kramer, 2:06-cv-02483 (E.D. Cal.); (2) Bontemps v. Kramer, 2:06-cv-02580 (E.D. Cal.); (3) Bontemps v. Polit, 3:95-cv-00765-MMC (N.D. Cal.); (4) Bontemps v. Gray, 2:07-cv-00710-MCE-CMK (E.D. Cal.); and (5) Bontemps v. George, 4:95-cv-00253-SBA (N.D. Cal.). Like the first five dismissals, defendants do not produce evidence showing that any of these dismissals should count as strikes.
Defendants' evidence shows that the two Kramer actions and the Gray action were dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local Rule 110, after plaintiff failed to file an amended complaint in accordance with the court's orders dismissing plaintiff's complaint with leave to amend for failure to state a claim. RJN, Exs. 1, 2,
5. Defendants contend that these dismissals count as strikes because Ninth Circuit case law does not require that a dismissal order explicitly cite section 1915(g) in order for it to count as a strike. Dckt. No. 40 at 3. Defendants further contend that the dismissals count as strikes because Ninth Circuit case law provides that when a court dismisses a complaint with leave to amend for failure to state a claim, and plaintiff does not take advantage of that opportunity, the court may convert the dismissal of the complaint into dismissal of the entire action. Id. (citing O'Neal, 531 F.3d at 1155). In the two Kramer actions and the Gray action, however, the court did not "convert" the dismissal of the complaint into dismissal of the entire action. Rather, the court dismissed the actions pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and Local Rule 110. Rule 41(b) permits involuntary dismissal for plaintiff's failure to prosecute, to comply with the Rules, or with a court order. Local Rule 110 permits the imposition "of any and all sanctions authorized by statute or Rule or within the inherent power of the Court" for the failure of counsel or a party to comply with the Local Rules on any court order. Although the order of dismissal need not cite to section 1915(g) for it to qualify as a strike, it will only so qualify if it can be reasonably interpreted as being premised on one of the reasons enumerated in section 1915(g). See Moore, 657 F.3d at 895. Here, defendants have not demonstrated how these dismissal orders can be reasonably interpreted as being premised on a reason listed in section 1915(g). See Keeton v. Cox, No. CIV-S-06-1094, 2009 U.S. Dist. LEXIS 19617, at *17 (E.D. Cal. Mar. 12, 2009) ("That plaintiff did not accept the invitation to recast his complaints does not render the ultimate dismissals, as articulated by the respective presiding judges, determinations that the actions did not state claims and thus could not have moved forward.").
For the Polit and George actions, defendants again produce only the docket printouts. RJN, Exs. 3, 4. The printouts show that the court dismissed Polit for failure to prosecute pursuant to Rule 41(b) and that the court dismissed George approximately two months after dismissing the complaint with leave to amend. Defendants' evidence does not show that either action was dismissed for failure to state a claim. If, as defendants contend, the actions were dismissed for the reasons they assert, defendants could, and should have obtained and submitted the documentation to establish that fact.
Accordingly, defendants' motion to revoke plaintiff's in forma pauperis status pursuant to § 1915(g) must be denied.
B. Pattern of Abusive Litigation in Forma Pauperis
Defendants also argue that plaintiff's in forma pauperis status should be revoked because he is an "abusive filer." The "court has the inherent power to restrict a litigant's ability to commence abusive litigation in forma pauperis." Visser v. Supreme Court of California, 919 F.2d 113, 114 (9th Cir. 1990) (citing In re McDonald, 489 U.S. 180 (1989). In Visser, the court denied the petitioner leave to proceed in forma pauperis because he had "engaged in a pattern of litigation which [was] manifestly abusive." Id. (explaining that in the previous sixteen months, petitioner had sought leave to proceed in forma pauperis in eleven mandamus actions where the petitions consisted of "vague rambling diatribes"). If it were properly established that plaintiff had ten or more actions dismissed as frivolous, defendants' argument might warrant dismissal. But defendants have not ...