United States District Court, N.D. California
ORDER TO SHOW CAUSE
RONALD M. WHYTE, District Judge.
Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 seeking damages for alleged civil rights violations. Plaintiff has also filed an application for leave to proceed in forma pauperis ("IFP"). (Docket No. 3).
The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on April 26, 1996. It provides that 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 be counted under section 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 section 1915(g) purposes. See id. Dismissal of an action under section 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.
Andrews requires that the prisoner be given notice of the potential applicability of section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id . Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but requires the court to notify the prisoner of the earlier dismissals it considers to support a section 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action.
A review of the dismissal orders in plaintiff's prior prisoner actions reveals that he has had at least three such cases dismissed on the ground that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Plaintiff is now given notice that the court believes the following federal district court dismissals may be counted as dismissals for purposes of section 1915(g): (1) Hardaway v. Board of Prison Term, No. C 91-0658-CAL (N.D. Cal. March 7, 1991) (dismissing complaint for failure to state a claim); (2) Hardaway v. Money, et al., No. 01-0458-FDC-DAD (E.D. Cal. March 7, 2001) (adopting report and recommendation to dismiss action for failure to state a claim); (3) Hardaway v. Wright, et al., No. 01-0958-GEB-DAD (E.D. Cal. May 17, 2001) (adopting report and recommendation dismissing the case for failure to state a claim); (4) Hardaway v. Runnels, et al., No. 06-0451-ALA (E.D. Cal. March 6, 2006) (dismissing action and directing that it count as a "strike, " pursuant to Section 1915(g)); (5) Hardaway v. State of California, No. 06-0695-MCE-EFB (E.D. Cal April 19, 2006) (adopting report and recommendation dismissing action for failure to file a timely amended complaint); (6) Hardaway v. Dept. of Corrections, et al., No. 06-1588-GEB-GGH (E.D. Cal. July 17, 2006 (same); (7) Hardaway v. Olsen, et al., No. 06-1406-LJO-LJO (E.D. Cal. Oct. 5, 2006) (same); (8) Hardaway v. Access Securepak, et al., No. 07-0254-OWW-SMS (E.D. Cal. Feb. 7, 2007) (adopting report and recommendation that action be dismissed for failure to state a claim); (9) Hardaway v. State of California, et al., No. 08-1663-PMP-GWF (E.D. Cal. July 18, 2008) (same); (10) Hardaway v. Twleve Jurors, No. 06-2983 JF (N.D. Cal. May 3, 2006) (dismissing for failure to state a claim and recognizing that plaintiff has had three strikes pursuant to Section 1915(g)); (11) Hardaway v. Barni, et al., No. 06-3637 JF (N.D. Cal. June 8, 2006) (same); (12) Hardaway v. Lambden, et al., No. 06-6578 JF (N.D. Cal. Oct. 23, 2006) (same); (13) Hardaway v. Specter, No. 06-6786 JF (N.D. Cal. Nov. 1, 2006) (same); (14) Hardaway v. Fogel, No. 08-3677 WHA (N.D. Cal. Aug. 1, 2008) (dismissing action for failure to state a claim); and (15) Hardaway v. County of Alameda, et al., No. 08-4322 JF (N.D. Cal. Sept. 15, 2008) (dismissing action under Heck v. Humphrey, 512 U.S. 477 (1994)). The court made its evaluation of these cases based on documents the court previously took judicial notice of in its order revoking plaintiff's IFP status and order of dismissal in Hardaway v. Chavez-Epperson, No. 12-5459 RMW (N.D. Cal. order filed Feb. 3, 2014).
In light of these dismissals, and because plaintiff does not appear to be under imminent danger of serious physical injury, see Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), plaintiff is ORDERED TO SHOW CAUSE in writing no later than thirty (30) days from the date of this order why his motion for leave to proceed IFP should not be denied and this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). If plaintiff is so inclined, he may avoid dismissal by paying the $400.00 filing fee. In any event, the court will continue to review under section 1915(g) all future actions filed by plaintiff while he is incarcerated in which he seeks IFP status.
Failure to file a timely response or failure to pay the full filing fee in will result in the dismissal of this action ...