The opinion of the court was delivered by: Allison Claire United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Colon's October 29, 2012 (ECF No. 40) motion to revoke plaintiff's in forma pauperis status, in which defendants Richards, Nicholson and Casey joined on November 7, 2012 (ECF No. 45). The motion is fully briefed. See ECF No. 53 (plaintiff's opposition), ECF No. 54 (defendants' reply). Also pending before the court are defendants' motion to strike plaintiff's "sur-opposition" or sur-reply (ECF No. 58), and plaintiff's motion for leave to amend and extension of time to amend (ECF No. 66).
Motion to Revoke In Forma Pauperis Status
The Prison Litigation Reform Act of 1995 ("PLRA") 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); see generally Andrews v. King, 398 F.3d 1113, 1115-16 (9th Cir. 2005). The plain language of the statute makes clear that a prisoner is precluded from bringing a civil action in forma pauperis ("IFP") 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). When a defendant challenges a prisoner's right to proceed IFP, the defendant bears the burden of producing sufficient evidence to establish that § 1915(g) bars the plaintiff's IFP status. Once the defendant has made out a prima facie case, the burden shifts to plaintiff to persuade the court that § 1915(g) does not apply. Andrews, 398 F.3d at 1116. 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 in part on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995).
The § 1915(g) "three strikes" rule should be used to deny IFP status only upon review of the prior dismissals for a determination that the actions were dismissed as frivolous, malicious or for failure to state a claim. Andrews, 398 F.3d at 1121. Dismissals for failure to state a claim with or without prejudice may count as strikes. O'Neal v. Price, 531 F.3d 1146, 1154-55 & n.9 (9th Cir. 2008). A prior case "plainly qualifie[s] as a strike" when "the docket record show[s] that it was dismissed for failure to state a claim under Rule 12(b)(6)." Andrews, 398 F.3d at 1121; see also Moore v. Maricopa County Sheriff's Office, 657 F.3d 890, 894 (9th Cir. 2011) (dismissals pursuant to Fed. R. Civ. P. 12 (b)(6) qualify as strikes under § 1915(g)), cert. denied, 132 S. Ct. 2777 (2012). Rejection of an IFP application on grounds that the complaint fails to state a claim, under 28 U.S.C. § 1915(e), operates as a dismissal and constitutes a strike. O'Neal, 531 F.3d at 1153; see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (three dismissals under § 1915(e)(2) result in disqualification from IFP status pursuant to § 1915(g)) . Where a complaint has been dismissed on more than one ground and it is clear that failure to state a claim was "a fully sufficient condition . . . for a dismissal with prejudice," that dismissal constitutes a strike. O'Neal, 531 F.3d at 1155-56.
Defendants request judicial notice of court records they have included as exhibits to their motion, which request is granted. (Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981)).
Defendants cite the following cases as strikes: ! Turner v. Girton, Case No. 2:00-cv-1784 FCD GGH P dismissed by Order filed on May 21, 2001, granting defendants' motion to dismiss. ECF No. 41-1, Ex. C at 11-12. ! Turner v. Girton, Case No. 2:03-cv-1667 MCE DAD P -dismissed by Order filed on July 1, 2004 "for failure to state a claim upon which relief may be granted." ECF No. 41-1, Ex. E at 20-21.
! Turner v. Kato, Case No. 3:03-cv-4675 JSW (N.D. Cal.)*fn1
-dismissed by Order filed on March 29, 2007 granting
defendants' 12(b)(6) motion to dismiss for failure to state a claim
(and denying summary judgment motion as moot). ECF No. 41-1, Ex. H at
The complaint in Turner v. Girton, Case No. 2:03-cv-1667 MCE DAD P, was dismissed with leave to file an amended complaint, after which the amended complaint was dismissed at the screening stage for failure to state a claim. ECF Nos. 14, 20, 26 in Case No. 2:03-cv-1667.*fn2 Dismissal at the screening stage for failure to state a claim constitutes a strike. O'Neal, 531 F.3d at 1153; Lopez, 203 F.3d at 1129.
In Turner v. Kato, Case No. 3:03-cv-4675 JSW, a complaint that had passed through the screening process was nonetheless dismissed on defendants'12(b)(6) motion, when the court determined that the amended complaint sought relief that was unavailable. ECF No. 41-1, Ex. H at 35 - 42 (Order filed on March 29, 2007). Hence, it is clear that this case was dismissed under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. Katotherefore counts as a strike. See Andrews, 398 F.3d at 1121; Moore, 657 F.3d at 894.
Turner v. Girton, Case No. 2:00-cv-1784 FCD GGH P, presents a closer question. In this case, the magistrate judge had found at the screening stage that the original and first amended complaints both stated cognizable claims. ECF Nos. 7, 15 in Case No. 2:00-cv-1784. Defendant thereafter filed a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), which motion plaintiff failed to oppose. See ECF Nos. 20, 22 in Case No. 2:00-cv-1784. The magistrate judge found that plaintiff's failure to oppose the motion should be deemed a waiver of opposition to the granting of the motion, and recommended the motion to dismiss be granted and the action be dismissed. ECF No. 22 in Case No. 2:00-cv-1784. The Findings and Recommendations were adopted by the district judge and the case was dismissed on May 21, 2001. ECF No. 23 in Case No. 2:00-cv-1784.
The Ninth Circuit has cautioned district courts to carefully examine orders of dismissal for their basis in determining whether they ...