United States District Court, E.D. California
LEON E. MORRIS, Plaintiff,
C. M. GREEN, Defendant.
CAROLYN K. DELANEY, Magistrate Judge.
Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. On December 3, 2013, the undersigned granted plaintiff's request to proceed in forma pauperis and ordered service on defendant Green. (ECF No. 20.) Before the court is defendant's March 13, 2014 motion to revoke plaintiff's in forma pauperis status on the ground that plaintiff is a "three strikes" inmate under 28 U.S.C. § 1915(g). (ECF No. 27.) Plaintiff has filed an opposition. (ECF No. 28.) For the reasons set forth below, the undersigned will deny defendant's motion.
I. Motion to Revoke 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 (§ 1915(g)) 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.
Defendant contends in his motion that plaintiff's litigation history shows that he has at least three prior strikes. Per defendant's request, the undersigned takes judicial notice of the following cases:
A. Morris v. Duncan, No. C 02-0928 MJJ (PR) (N.D. Cal. May 3, 2002). This action was dismissed for failure to state a cognizable claim for relief under 42 U.S.C. § 1983 and thus qualifies as a strike under § 1915(g). (Def. Ex. A, ECF No. 27-3.)
B. Morris v. Silvers, No. C 98-01381 BTM (LAB) (S.D. Cal. Sept. 15, 1998). This action was dismissed because the court found that, in light of plaintiff's pending state criminal proceedings, abstention was proper pursuant to Younger v. Harris , 401 U.S. 37 (1971.) (Def. Ex. B.) Earlier in the instant action, the district court concluded that dismissals based on Younger abstention are not to be considered strikes under § 1915(g). (ECF No. 19 at 5-8.) See also Morris v. Nangalama, No. 13-17058 (9th Cir. Jan. 13, 2014) (reversing district court's denials of plaintiff's motions for reconsideration of three-strikes status, because "Morris v. Silvers should not be counted as a strike."). (ECF No. 28 at 9.)
C. Morris v. Lushia, No. C 00-55330 (9th Cir. Mar. 27, 2000) ("Lushia I"). The Ninth Circuit dismissed this appeal for lack of jurisdiction because the order challenged was neither final nor appealable. (Def. Ex. C.) Earlier in the instant action, the district court concluded that the dismissal of a premature appeal should not be considered a strike under §1915(g). (ECF No. 19 at 8-10.)
D. Morris v. Lushia, No. C 00 56600 (9th Cir. March 13, 2001) ("Lushia II"). On February 20, 2001, after the district court determined that plaintiff's appeal was not filed in good faith, the Ninth Circuit's "review of the record confirm[ed] that [appellant] is not entitled to ifp status for his appeal." When plaintiff failed to timely pay the filing fee, the Ninth Circuit dismissed the appeal for failure to prosecute. The Ninth Circuit denied a subsequent motion by plaintiff to reinstate the appeal "without prejudice to renewal within 21 days, accompanied by proof" ...