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Dawson v. CDCR

United States District Court, E.D. California

July 22, 2016

ISSAC DA’BOUR DAWSON, Plaintiff,
v.
CDCR, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS (DOCUMENT 14)

          DENNIS L. BECK UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Issac Da’Bour Dawson (“Plaintiff”), a state inmate in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s December 14, 2015, complaint states the following claims: (1) a Fourth Amendment claim against Defendants Johnson, Guzman, Gonzales and Sheldon; and (2) a First Amendment retaliation claim against Defendants Guzman, Gonzales and Marsh.

         On June 15, 2016, Defendants Johnson, Gonzales, Guzman and Sheldon filed the instant motion to revoke Plaintiff’s in forma pauperis status.[1] Plaintiff did not file an opposition. The motion is ready for decision pursuant to Local Rule 230(1).

         A.LEGAL STANDARD

         The Prison Litigation Reform Act of 1995 (PRLA) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir.2011). 28 U.S.C. § 1915(g) provides that “[I]n no event shall a prisoner bring a civil action ... under this section if the prisoner has, on three 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.”

         In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005), the Ninth Circuit explained, “[t]he PLRA does not define the terms ‘frivolous, ’ or ‘malicious, ’ nor does it define dismissals for failure to ‘state a claim upon which relief could be granted’... We have held that the phrase ‘fails to state a claim on which relief may be granted, ’ as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure 12(b)(6).” In defining the terms frivolous and malicious, the Andrews court held, “[W]e look to their ‘ordinary, contemporary, common meaning.’... Thus, a case is frivolous if it is ‘of little weight or importance: having no basis in law or fact’... A case is malicious if it was filed with the ‘intention or desire to harm another’”. Andrews, 398 F.3d at 1121 (internal quotations and citations omitted). 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 (2014).

         In seeking revocation of Plaintiff’s in forma pauperis status, Defendants bear the burden of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Andrews, 398 F.3d at 1120.

         Once Defendants meet their initial burden, the burden shifts to Plaintiff to explain why a prior dismissal should not count as a strike. King, 398 F.3d at 1120. If Plaintiff fails to meet that burden, his in forma pauperis status should be revoked under § 1915(g). King, 398 F.3d at 1120.

         B.DISCUSSION

         Defendants argue that Plaintiff’s in forma pauperis status should be revoked because, at the time this action was filed, Plaintiff had the following strikes:

         1. Dawson v. Reyes, No. 2:12-cv-01134 DAD (E.D. Cal.)[2]

         This case was dismissed on July 5, 2012, for failure to state a claim. By its plain language, this dismissal counts as a strike. King, 398 F.3d at 1120.

         2. Dawson v. Sacramento County Jail, No. 2:12-cv-00963-JAM-GGH (E.D. Cal.)

         On July 7, 2012, the Court screened Plaintiff’s complaint and dismissed it with leave to amend for his failure to identify any named defendants and for failing to state a “colorable claim.” ECF No. 15-1, at 15. Plaintiff was ordered to file an amended complaint within twenty-eight days. After Plaintiff failed to file an amended complaint, the Court issued Findings and Recommendations on August 27, 2012, recommending that the action be dismissed without prejudice because mail had been returned to the Court and he failed to update ...


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