United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding without counsel, in a civil
action. He was granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915 on January 19, 2016. This
proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1).
10, 2016, defendant filed a motion to reconsider the order
granting plaintiff leave to proceed in forma pauperis, and to
revoke plaintiff's in forma pauperis status. Plaintiff
filed an opposition, and defendant filed a reply. As
explained below, defendant's motion should be granted.
28 U.S.C. § 1915(g) is part of the Prison Litigation
Reform Act ("PLRA"). The PLRA was intended to
eliminate frivolous lawsuits, and its main purpose was to
address the overwhelming number of prisoner lawsuits.
Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014).
28 U.S.C. § 1915(g) reads:
In 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). As the Supreme Court stated, this
"three strikes rule" was part of "a variety of
reforms designed to filter out the bad claims filed by
prisoners and facilitate consideration of the good."
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Block, 549 U.S. 199, 204 (2007)).
If a prisoner has "three strikes" under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). The Ninth Circuit has
held that the complaint of a "three-strikes"
prisoner must plausibly allege that the prisoner was faced
with imminent danger of serious physical injury at the time
his complaint was filed. See Williams v. Paramo, 775
F.3d 1182, 1189 (9th Cir. 2014); Cervantes, 493 F.3d
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 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 or appeals (or any combination thereof
totaling three). See Rodriguez v. Cook, 169 F.3d
1176, 1178 (9th Cir. 1999). Title 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). Defendants have 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)). To determine
whether a dismissal qualifies as a strike, a "reviewing
court looks to the dismissing court's action and the
reasons underlying it." Knapp v. Hogan, 738
F.3d 1106, 1109 (9th Cir. 2013) (citing King, 398
F.3d at 1121), cert. denied, 135 S.Ct. 57
defendants meet their initial burden, it is plaintiff's
burden to explain why a prior dismissal should not count as a
strike. King, 398 F.3d at 1120. If the plaintiff
fails to meet that burden, plaintiff's in forma pauperis
status should be revoked under 28 U.S.C. § 1915(g).
King, 398 F.3d at 1120.
Plaintiff's Prior Actions
of court records reveals that, prior to December 9, 2015, the
date the instant action was filed, on three occasions
lawsuits filed by the plaintiff have been dismissed on
screening as barred by the statute of limitations:
1. Williams v. Aparicio, Case No. 2:14-cv-08640
(C.D. Cal. February 5, 2015). (ECF No. 10-2 at 16; see
also ECF No. 10-2 at 10-15 (report and
2. Williams v. Kerkfoot, Case No. 2:14-cv-07583
(C.D. Cal. May 15, 2015) (ECF No. 10-2 at 38; see
also ECF No. 10-2 at ...