United States District Court, E.D. California
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, brings this civil rights
action pursuant to 42 U.S.C. § 1983. On September 25,
2015, the undersigned granted plaintiff's request to
proceed in forma pauperis. (ECF No. 6.) On February 10, 2016,
the undersigned ordered service of the First Amended
Complaint on defendants Dooley, Mendosa, and Whitten. (ECF
No. 15.) Plaintiff claims that defendants unlawfully
retaliated against him by destroying his property when he was
transferred to another prison in 2012. (ECF No. 11.)
the court is defendants' April 29, 2016 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. 22.) Plaintiff has not filed
an opposition. For the reasons set forth below, the court
will grant the motion.
Motion to Revoke IFP Status
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
[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).
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.
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.,
submit court records indicating that plaintiff has been
deemed a Three Strikes inmate under 28 U.S.C. §
1915(g). Heilman v. Dillen, No.
2:14-cv-6298 (C.D. Cal. Nov. 2, 2015), Order dated Nov. 2,
2015. (ECF No. 20, Ex. A; see also ECF No. 25.) In
Dillen, the court found that the following actions
counted as strikes under § 1915(g) because they were
dismissed as frivolous or failing to state a claim: (1)
Heilman v. Fisher, No. 2:09-cv-0197 (E.D. Cal.
2009); Heilman v. Fry, No. 2:08-cv-2478 (E.D. Cal.
2008); (3) Heilman v. CDCR, No. 2:11-cv-3452 (E.D.
Cal. 2011); and Heilman v. Paramo, No. 3:13-cv-01860
(S.D. Cal. 2013). Having reviewed the Fisher,
Fry, CDCR, and Paramo cases, the
court agrees that plaintiff has sustained three strikes under
§ 1915(g). (See ECF No. 25.) Moreover,
plaintiff has not credibly alleged "imminent danger of
serious physical injury" under § 1915(g).
IT IS HEREBY ORDERED that:
Defendants' motion to revoke plaintiff's IFP status
(ECF No. 22) is granted;
Plaintiff shall pay the $400 filing fee. It is noted that the
Court is in ...