United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
RON BARNES et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis ("IFP") with this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendant Abbott's motion to revoke plaintiff's IFP status pursuant to 28 U.S.C. § 1915(g). Plaintiff has opposed the motion, and defendant has filed a reply.
Plaintiff is proceeding on his original complaint in this action. After granting plaintiff's application to proceed in forma pauperis, the court screened plaintiff's complaint and found that it appeared to state a cognizable claim for excessive use of force and retaliation against defendant Abbott. Specifically, in his complaint pending before the court plaintiff alleges as follows. Plaintiff was outside the chow hall when he told defendant Abbott that he needed to go and get his medication. Defendant Abbott then started violently searching him. During the search, defendant Abbott pushed and shoved plaintiff, kicked plaintiff's leg, which was in an air cast, and groped and squeezed plaintiff's genitals. Defendant Abbott also told plaintiff that he was conducting the search due to the paperwork that plaintiff had filed against the defendant's fellow correctional officers. (Doc. Nos. 1 & 8.)
In defendant Abbott's motion to revoke plaintiff's IFP status, defense counsel argues that courts have previously dismissed three or more of plaintiff's civil actions or appeals as frivolous, malicious, or for failure to state a claim. (Defs.' Mot. at 3-10.) For the reasons set forth below, the undersigned disagrees and finds that defendant Abbott has not met the burden of establishing that plaintiff has accrued three strikes prior to the filing of this action.
I. Legal Standards Applicable Under 28 U.S.C. § 1915(g)
"The burden of establishing that three strikes have accrued is on the party challenging the prisoner's right to proceed in forma pauperis." Knapp v. Hogan , 738 F.3d 1106, 1110 (9th Cir. 2013). See also Silva v. Vittorio , 658 F.3d 1090, 1097, n. 3 (9th Cir. 2010); O'Neal v. Price , 531 F.3d 1146, 1151 (9th Cir. 2008); Andrews v. King , 398 F.3d 1113, 1116 (9th Cir. 2005). The Ninth Circuit has cautioned that when called upon to determine whether a prior dismissal qualifies as a strike, a subsequent court must be mindful of the following:
Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an 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....
[U]under the plain language of § 1915(g), [ ] prior dismissals [ ] qualify as strikes only if, after reviewing the orders dismissing those actions and other relevant information, the district court determine[s] that they ha[ve] been dismissed because they were frivolous, malicious or failed to state a claim. See § 1915(g).
Andrews , 398 F.3d at 1121. See also Knapp , 738 F.3d at 1109.
In addition, in interpreting § 1915(g) the Ninth Circuit has observed:
[T]he legislative history of the PLRA also supports our reading of the statute. While it is clear that Congress enacted § 1915(g) to curb frivolous prisoner complaints and appeals, see Taylor v. Delatoore , 281 F.3d 844, 849 (9th Cir. 2002) ("The PLRA filing fee provisions were enacted to deter the large number of frivolous inmate lawsuits that were clogging' the federal courts and draining' limited judicial resources"), the PLRA's reforms were "designed to filter out the bad claims and facilitate consideration of the good." Jones, 549 U.S. at 204, 127 S.Ct. 910. "Congress intended section 1915(g) only to penalize litigation that is truly frivolous, not to freeze out meritorious claims or ossify district court errors." Adepegba, 103 F.3d at 388; see also Jennings, 175 F.3d at 780. Thus, our reading of the statute "not only respects Congress' intent to curb meritless lawsuits, but ensures that meritorious lawsuits are not swept away in the process." See Lopez v. Smith , 203 F.3d 1122, 1129 (9th Cir. 2000) (quoting 141 Cong. Rec. S146110-01, S14267 ...