United States District Court, E.D. California
AMENDED FINDINGS AND RECOMMENDATION
ALLISON CLAIRE, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se and in forma pauperis, brings this civil rights action pursuant to 42 U.S.C. § 1983. Before the court is defendants' August 26, 2013 motion to revoke plaintiff's in forma pauperis status and to dismiss the action on the ground that plaintiff is a "three strikes" inmate under 28 U.S.C. § 1915(g). ECF No. 25. The undersigned issued Findings and Recommendations on November 7, 2013, which recommended granting the motion. ECF No. 28. On December 26, 2013, the Ninth Circuit U.S. Court of Appeal decided Knapp v. Hogan , 738 F.3d 1106 (9th Cir. 2013). On April 3, 2014, the District Judge returned the matter to the undersigned for reconsideration in light of Knapp. ECF No. 39.
I. Standards Governing Revocation of 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 the statute 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). 28 U.S.C. § 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) is carefully evaluated to determine that it was dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King , 398 F.3d 1113, 1121 (9th Cir. 2005). Defendant has 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 their 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.
In Silva v. Di Vittorio , 658 F.3d 1090, 1098-99 (9th Cir. 2011), the Ninth Circuit found that "a dismissal must be final before it counts as a strike' for § 1915(g) purposes." 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.
II. Motion To Revoke
Defendants contend in their motion that plaintiff's litigation history shows that he has three prior strikes. Defendants rely on the following three cases, of which the undersigned takes judicial notice:
1. Bontemps v. Kramer, No. 2:06-cv-2483 JAM GGH (E.D. Cal.). On November 8, 2006, plaintiff filed a pro se civil rights complaint against correctional staff and, two weeks later, a purported amended complaint. In his screening order, the Magistrate Judge found that "plaintiff has set forth no factual allegations supporting a claim of a violation of plaintiff's rights... and names no individual who has personally subjected him to" unconstitutional conditions. Id., ECF No. 9 at 4. As plaintiff failed to state a cognizable claim for relief, his complaints were dismissed with leave to amend. Id., ECF No. 9 at 6. On December 22, 2008, the action was dismissed for failure to timely file an amended complaint. Id., ECF Nos. 12, 14.
2. Bontemps v. Kramer, No. 2:06-cv-2580 GEB GGH (E.D. Cal.). On November 17, 2006, while the above action was pending, plaintiff filed a pro se civil rights complaint against a correctional officer and a prison warden. In the screening order, the Magistrate Judge found that plaintiff's allegations were insufficient to comply with the notice requirement of Rule 8 of the Federal Rules of Civil Procedure; that plaintiff made no allegations at all against the warden; and that plaintiff's allegations against the correctional officer were merely "conclusory." Id., ECF No. 9. Plaintiff's complaint was dismissed with leave to amend. Id . Plaintiff did not file an amended complaint within the time provided. On August 30, 2007, the action was dismissed "for the reasons given in the April 9, 2007, [screening] order." Id., ECF No. 11 (Findings and Recommendations) (adopted by Order at ECF No. 12).
3. Bontemps v. Gray, No. 2:07-cv-0710 MCE CMK (E.D. Cal.). On April 16, 2007, while the above action was pending, plaintiff filed a pro se civil rights complaint challenging prison officials' failure to file a staff complaint submitted by plaintiff. In the screening order, the Magistrate Judge concluded that plaintiff "fails to state a claim under the civil rights act, for there is no constitutional right to a prison grievance process." Id., ECF No. 3 at 3. As plaintiff failed to state a cognizable claim for relief, his complaint was dismissed with ...