United States District Court, C.D. California
GREGORY C. BONTEMPS
C. SMITH, et al.
Present: The Honorable Sheri Pym, United States Magistrate
IN CHAMBERS ORDER TO SHOW CAUSE WHY IFP STATUS SHOULD
NOT BE REVOKED AND COMPLAINT DISMISSED UNDER PLRA’S
THREE STRIKES PROVISION UNLESS PLAINTIFF PAYS FULL FILING
Honorable Sheri Pym, United States Magistrate Judge
Gregory C. Bontemps initiated this action on October 13, 2015
by filing a civil rights complaint in the United States
District Court for the Eastern District of California.
Plaintiff is a state prisoner proceeding pro se who, at the
time he filed the instant civil rights complaint, was
confined to the California State Prison, Centinela. Plaintiff
alleges correctional officers at the California State Prison,
Los Angeles County (“CSP-LAC”) used excessive
force against him in an incident that occurred on September
18, 2014, when plaintiff was housed at CSP-LAC.
case was subsequently transferred to this court. Plaintiff
did not pay the $350 filing fee, nor did he initially submit
a request to proceed without prepayment of the full filing
fee or in forma pauperis (“IFP”). Plaintiff
subsequently filed an IFP application, which the court
granted on February 11, 2016, allowing this case to proceed.
then, defendants in other cases before this court brought by
this plaintiff - specifically, the cases of Bontemps v.
Godina, No. CV 15-3171-JFW (SP), and Bontemps v.
Penate, No. CV 15-2268-JFW (SP) - have alerted the court
to the fact that plaintiff has at least three other
“strikes” that prevent plaintiff from proceeding
IFP under the “three strikes” provision of the
Prison Litigation Reform Act (“PLRA”). The
PLRA’s three strikes provision states: “In no
event shall a prisoner bring a civil action . . . under this
section [pertaining to proceedings in forma pauperis] 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).
“‘Strikes are prior cases or appeals, brought
while the plaintiff was a prisoner, which were dismissed
‘on the ground that [they were] frivolous, malicious,
or fail to state a claim.’” Andrews v.
King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
“Pursuant to § 1915(g), a prisoner with three
strikes or more cannot proceed IFP.”
court is aware of three cases brought by plaintiff in the
United States District Court for the Eastern District of
California while he was a state prisoner, each of which was
dismissed in 2013 for failure to state a claim, well before
plaintiff initiated the instant action: (1) in Bontemps
v. Lee, case number 2:12-CV-00771-KJN (E.D. Cal.),
plaintiff’s fourth amended complaint was dismissed on
January 31, 2013 without leave to amend for failure to state
a cognizable claim; (2) in Bontemps v. Aquino, case
number 2:12-CV-02406-EFB (E.D. Cal.), plaintiff’s
amended complaint was dismissed on July 9, 2013 without leave
to amend for failure to state a claim; and (3) in
Bontemps v. Romero, case number 2:13-CV-00614-EFB
(E.D. Cal.), plaintiff’s amended complaint was
dismissed on August 13, 2013 without leave to amend for
failure to state a claim. Each of these dismissals counts as
a strike under the plain language of 28 U.S.C. §
1915(g). See Andrews v. King, 398 F.3d at 1121
(§ 1915(g)’s “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)’”)
(citation omitted). Thus, plaintiff has three prior strikes,
which precludes him from proceeding IFP unless he is in
imminent danger of serious physical injury.
imminency element requires “a prisoner to
‘allege an ongoing danger.’” Andrews
v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007)
(citation omitted). The complaint here alleges a single
incident of excessive force, not ongoing danger, and gives no
indication that plaintiff was under imminent danger of
serious physical injury. Nor could he plausibly have been at
risk of ongoing danger related to the allegations of the
complaint, as by the time he filed the complaint plaintiff
was no longer housed at CSP-LAC. See Id. at 1053
(“it is the circumstances at the time of the filing of
the complaint that matters for purposes of the
‘imminent danger’ exception to §
1915(g)”). As such, it appears plaintiff may not
proceed IFP due to his three prior “strikes.”
court will not revoke plaintiff’s IFP status, however,
without first giving plaintiff an opportunity to respond.
Accordingly, within twenty-one days of the date of this
Order, that is, by August 15, 2016, plaintiff is ORDERED TO
SHOW CAUSE, in writing, why his IFP status should not be
revoked under the three strikes provision of the PLRA.
Plaintiff is cautioned that his failure to timely file a
response to this Order to Show Cause will be deemed by the
court as consent to the revocation of his IFP status.
Further, if plaintiff’s IFP status is revoked, ...