United States District Court, N.D. California
ORDER DENYING, WITHOUT PREJUDICE, MOTIONS TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. SECTION 1915(G) AND GRANTING PLAINTIFF LEAVE TO FILE AN AMENDED COMPLAINT Re: Dkt. Nos. 2, 4
CLAUDIA WILKEN, District Judge.
On December 9, 2014, Plaintiff Paul Samuel Johnson, a state prisoner currently incarcerated at the Sonoma County Main Adult Detention Facility (Sonoma County Jail), filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 for alleged constitutional violations that occurred while he was incarcerated at the Sonoma County Jail. Plaintiff has also filed two motions to proceed in forma pauperis (IFP). For the reasons discussed below, the Court finds that Plaintiff has three strikes under 28 U.S.C. § 1915(g) and denies his applications to proceed IFP, without prejudice to his showing that his complaint alleges that he was in imminent physical danger at the time he filed it.
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).
For purposes of a dismissal that may count under § 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 § 1915(g) purposes, so the mere fact that a plaintiff has filed many cases does not alone warrant dismissal under § 1915(g). Id. Rather, dismissal of an action under § 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. A dismissal under § 1915(g) means that a prisoner cannot proceed with his action IFP under § 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).
I. Plaintiff's Strikes
On April 2, 2015, the Court dismissed one of Plaintiff's previous cases, Johnson v. Hanna, et al., C 14-1300 CW (PR), without prejudice to filing it as a paid complaint because Plaintiff had at least three previous cases that were dismissed on grounds that qualified as strikes under 28 U.S.C. § 1915(g) and his complaint did not make a plausible allegation that he faced imminent physical danger at the time he filed it. See Johnson v. Hanna, C 14-1300 CW (PR), Dkt. No. 29.
These dismissals count as strikes under § 1915(g) in this case, also. They are as follows:
(1) Johnson v. Cate, case no. C 11-2749 MCE CKD (E.D. Cal.), where the Court dismissed the complaint after notifying Plaintiff "that his complaint failed to state a claim and he did not correct the deficiencies identified by the Court." Hanna, C 14-1300 CW (PR) at 3-4 (citing O'Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008) (dismissal without prejudice counts as a strike under § 1915(g) if it is based on the action's frivolousness, maliciousness or failure to state a claim)).
(2) Johnson v. Cate, case no. C 12-0598 GGH P (E.D. Cal.), where
the Court dismissed Plaintiff's complaint because it was "not clear what plaintiff's claims are." Plaintiff was granted leave to amend and was granted two extensions of time in which to file an amended complaint. Plaintiff failed to file an amended complaint and, on October 16, 2012, the Court dismissed the complaint because the allegations were unclear and unintelligible and for failing to follow the court's instructions.
Hanna, C 14-1300 CW (PR) at 4.
(3) Johnson v. Alison, app. no. 12-17463 (9th ...