United States District Court, N.D. California, Oakland Division
ORDER GRANTING MOTION FOR REVOCATION OF IN FORMA PAUPERIS STATUS; VACATING ORDER GRANTING IN FORMA PAUPERIS STATUS; AND DISMISSING ACTION WITHOUT PREJUDICE TO FILING A MOTION TO REOPEN UPON PAYING FULL FILING FEE (Docket Nos. 16, 29, 32)
YVONNE GONNALEZ ROGERS, District Judge.
Plaintiff, an inmate currently incarcerated at California State Prison - Los Angeles County and frequent litigant in federal court, has filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 alleging constitutional violations that occurred while he was housed at Salinas Valley State Prison ("SVSP").
Upon its initial review of the complaint, the Court determined that Plaintiff's claims against his jailors at SVSP fell into two categories and dismissed the claims in the second set as improperly joinder, stating as follows:
The first category are claims of excessive force and retaliation. The second relate to a prison disciplinary process. As the second set involves different claims against different defendants, those claims are DISMISSED without prejudice. If plaintiff seeks relief on this second set of claims, he may file a separate civil rights action.
(Jan. 10, 2013 Order of Service at 2). As to the first set of claims, the Court found that Plaintiff stated cognizable claims against Defendants SVSP Correctional Officers Cermeno and Mejia for (1) the use of excessive force on June 27, 2011, and (2) making threats and other acts of retaliation. The Court also found that the complaint stated a due process claim against Defendants SVSP Prison Officials A. Solis, Soto, Trexler, V. Solis, and R. Machuca for their handling of Plaintiff's grievances against Defendants Cermeno and Mejia. In an Order dated January 10, 2013, the Court issued its Order of Service. In a separate Order dated January 16, 2013, the Court granted Plaintiff's motion for leave to proceed in forma pauperis ("IFP").
Defendants have filed a motion requesting the Court to revoke Plaintiff's IFP status under 28 U.S.C. § 1915(g). Defendants specifically argue that Plaintiff's IFP status should be revoked because (1) he filed four prior prisoner cases in federal court that were dismissed because they were either frivolous, malicious or failed to state a claim, and (2) he was not under imminent danger of serious physical injury when he filed this action. Plaintiff has filed an opposition, and Defendants have filed a reply.
Having considered all of the papers filed by the parties, the Court GRANTS Defendants' motion to revoke Plaintiff's IFP status under 28 U.S.C. § 1915(g).
The Prison Litigation Reform Act of 1995 was enacted, and became effective, on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. § 1915 "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). Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).
For purposes of a dismissal that may be counted under section 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little weight or importance: having no basis in law or fact, " and the word "malicious" refers to a case "filed with the intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action under section 1915(g) should only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim." Id.
Andrews requires that the prisoner be given notice of the potential applicability of section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id . Andrews implicitly allows the Court to sua sponte raise the section 1915(g) problem, but requires the Court to notify the prisoner of the earlier dismissals it considers to support a section 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action.
At the time Plaintiff was granted leave to proceed IFP, the Court was unaware of the basis of the dismissals of his cases in other districts, i.e., the United States District Court for the Central and Eastern Districts of California. However, in Defendants' motion requesting the Court to revoke Plaintiff's IFP status, they have attached the actual dismissal orders from the Central and Eastern Districts. Therefore, Defendants argue that these dismissals should be considered to support a section 1915(g) dismissal.
A review of the dismissal orders in Plaintiff's prior prisoner actions in this Court reveals that Plaintiff has had at least four such cases dismissed on the ground that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Defendants have given Plaintiff notice that the following dismissals may be counted as dismissals for purposes of section 1915(g): (1) Williams v. Narramore, dismissed for failure to state claim upon which relief may be granted); (2) Williams v. Bonzer, No. CV 04-8941-UA-AJW (C.D. Cal. Nov. 22, 2004) (same); (3) Williams v. Hubbard, et al., 10-1717-UA-FFM (C.D. Cal. July 6, 2010) (same); and (4) Williams v. Young, FCD-CMK-P (E.D. Cal. July 29, 2010) (same). (Defs.' Req. for Jud. Notice, Exs. A-E.) In his opposition, Plaintiff had the opportunity to respond to the aforementioned dismissals the Court could consider to support a section 1915(g) dismissal. Plaintiff does not dispute that any of the aforementioned prior dismissals count as "strikes." Although this Court has considered four dismissals, only three prior dismissals need to qualify as "strikes" under section 1915(g). Therefore, upon considering the exhibits submitted by Defendants, the Court finds that Plaintiff's three dismissals in may be counted as "strikes" for purposes of section 1915(g).
As mentioned above, in his opposition to Defendants' motion to dismiss, Plaintiff does not dispute that he suffered at least three dismissals that qualify as "strikes." Instead, Plaintiff argues that he was under imminent danger of serious physical injury when he filed the instant complaint on July 9, 2012. Plaintiff asserts that at the time he filed the complaint, he was "rehoused back to ad-seg where [Defendants Cermeno and Mejia were] assigned post, and because of Plaintiff being under the direct authority and supervision of both [Defendants] who each persist[ed] with the same ...