United States District Court, E.D. California
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 March 14, 2014, the undersigned granted plaintiff's request to proceed in forma pauperis. (ECF No. 13.) On October 20, 2014, the undersigned ordered that the First Amended Complaint be served on defendant McIntrny. (ECF No. 30.)
Before the court is defendant's January 26, 2015 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. 35.) Plaintiff has not filed an opposition. For the reasons set forth below, the court will deny the 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 that plaintiff's litigation history shows that he has three prior strikes. Per defendant's request, the undersigned takes judicial notice of the following cases:
A. Anderson v. Woodford, No. 2:04-cv-06803 (C.D. Cal.). On September 2, 2004, the court denied plaintiff's application to file this action without prepayment of the filing fee. (Def. Ex. A, ECF No. 35-2.) The reason was that the complaint violated Rule 8 of the Federal Rules of Civil Procedure, as it "purports to name dozens of defendants while giving little or no indication of how the defendants allegedly are responsible for the events of which Plaintiff complains." (Id.) The court noted that a complaint that does not comply with Rule 8 is subject to dismissal, and that there appeared to be an adequate state remedy for the property loss alleged in the complaint. (Id.) Less than a month after this order, plaintiff's motions for extension of time and appointment of counsel were "rejected, " and it was noted on the docket that the case was closed on September 2, 2004. (Id.)
In Knapp v. Horgan, 738 F.3d 1106 (9th Cir. 2013), the Ninth Circuit clarified the circumstances under which a prior dismissal may be deemed a strike under § 1915(g). Specifically, the Ninth Circuit "addressed the question of whether and when a dismissal for violation of Federal Rule of Civil Procedure 8(a)'s short and plain statement' requirement could constitute a strike under § 1915(g)." Bontemps v. Sotak, No. 2:09-cv-2115 MCE EFB P, 2015 WL 812360, *3 (E.D. Cal. Feb. 25, 2015), citing Knapp, 738 F.3d 1106. The Ninth Circuit concluded that a
Rule 8(a) dismissal is neither categorically included nor excluded from counting as a § 1915(g) strike.' Rather, each dismissal under Rule 8(a) must be assessed independently: did the dismissal result from the court's appraisal of the merits of the case (i.e., was it frivolous' or did it fail to state a claim'), or did the ...