United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding without counsel in an action
brought under 42 U.S.C. § 1983. Defendant has filed a
motion for an order revoking plaintiff’s in forma
pauperis status and requiring plaintiff to post a security.
ECF No. 20. For the following reasons, the motion must be
action proceeds on plaintiff’s first amended complaint,
in which plaintiff alleges that defendant Bonds, a
correctional officer, subjected him to excessive force when
he handcuffed plaintiff much too tightly and then dragged him
through freezing outdoor temperatures for a quarter of a
mile. ECF No. 14 at 3. On April 29, 2015, the court granted
plaintiff leave to proceed in forma pauperis. ECF No. 11.
Defendant moves to revoke that status and require plaintiff
to post a security in order to continue with the case. ECF
The Motion to Revoke IFP Status
U.S.C. § 1915 authorizes federal courts to allow certain
litigants to sue without prepayment of the ordinary filing
fee (commonly referred to as “proceeding in forma
pauperis”). These litigants must show that they are
unable to pay the fee. 28 U.S.C. § 1915(a)(1). Prisoners
face additional barriers to proceeding in forma pauperis. One
such barrier, known as the “three strikes”
provision, provides: “In no event shall a prisoner
bring a civil action 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); Andrews v. King, 398 F.3d 1113, 1116 n. 1
(9th Cir.2005). Prior cases that fall within the categories
described by § 1915(g) are known as
“strikes.” Thus, under § 1915(g), a prisoner
with three or more strikes (and who was not under imminent
danger at the time of filing the complaint) may not proceed
in forma pauperis and must instead pay the full filing fee up
front. Andrews v. Cervantes, 493 F.3d 1047, 1052
(9th Cir. 2007).
defendant challenges a prisoner’s right to proceed in
forma pauperis, the defendant bears the burden of producing
sufficient evidence to establish that the plaintiff has
sustained three strikes. Andrews, 398 F.3d at 1116,
1120. To discharge this burden, the defendant must produce
court records or other documentation that will allow the
district court to determine that three prior cases were
dismissed for the reasons set forth in § 1915(g). Once
the defendant has done so, the burden shifts to the plaintiff
to persuade the court that § 1915(g) should not apply.
Ninth Circuit has cautioned district courts to look closely
at dismissal orders and any other relevant information in
determining whether a case was dismissed for one of the
reasons listed in § 1915(g). Andrews, 398 F.3d
at 1121. The court may deny in forma pauperis status only
when, after this careful evaluation, the court determines
that the prior actions were dismissed because they were
frivolous, malicious or failed to state a claim. Id.
identifies three cases which he claims are strikes within the
meaning of § 1915(g). If any of these three cases are
not strikes, defendant’s motion fails. And, indeed, one
of the cases proffered by defendant does not qualify as a
strike: Jenkins v. Hill, E.D. Cal. Case No.
2:11-cv-2031-GEB (hereinafter “Hill”).
was a federal habeas petition filed by plaintiff to challenge
the California Board of Prison Hearings’ decision to
deny him parole, an alleged sentencing-computation error by
the Board, and their application of California’s
Proposition 9 (“Marsy’s Law”) to his case.
Case No. 2:11-cv-02031-GEB-KJN, ECF No. 1. Defendant
concedes that, ordinarily, “dismissed habeas petitions
do not count as strikes under § 1915(g).”
Andrews v. King, 398 F.3d at 1122. Only where a
habeas petition is really a civil rights action intentionally
mislabeled as a habeas petition “so as to avoid the
penalties imposed by 28 U.S.C. § 1915(g)” may a
habeas petition be considered as a potential strike.
Id. at 1122 n.12.
argues that the claims plaintiff raised in Hill
should really have been brought in a civil rights action
instead of a habeas action because his success on those
claims would not have necessitated his earlier release. What
defendant fails to show is that plaintiff had any intention
of avoiding the application of § 1915(g) in filing
Hill as a habeas petition instead of a § 1983
action. Instead, plaintiff raised claims in that case that
straddle the still poorly-defined barrier between § 1983
and the federal habeas statute and, at the time he filed the
petition, were considered by many courts to be proper habeas
claims. See Jackson v. Swarthout, No. CIV S-10-494
GEB EFB, 2011 U.S. Dist. LEXIS 97713 (July 31, 2011).
Unsurprisingly, the jurists who actually reviewed
plaintiff’s habeas petition did not dismiss it because
it should have been brought under § 1983. Instead,
Magistrate Judge Newman and District Judge Burrell considered
the merits of the claims. ECF No. 20-3 at 34-46. Because
defendant has provided the court with nothing that suggests
that plaintiff filed Hill as a habeas petition as an
intentional subterfuge to avoid the application of §
1915(g), the court may not count this dismissed habeas
petition as a strike. See, e.g., Chatman v.
Frazier, Case No. 2:13-cv-1605 KJM KJN P, 2016 U.S.
Dist. LEXIS 28022, at *6-7 (E.D. Cal. Mar. 4, 2016)
(declining to count as a strike a habeas petition that was
dismissed because it did not clearly implicate the duration
of confinement where the dismissal order did not indicate
that the petition had been brought in bad faith or was
intentionally mislabeled to avoid application of §
1915(g)); Hollis v. Gorby, Case No. CIV S-09-1627
DAD (TEMP) P, 2011 U.S. Dist. LEXIS 76925, at *4-5 (E.D. Cal.
July 14, 2011) (declining to count as a strike a dismissed
habeas petition where the dismissal order did not include a
finding that the case was brought under the habeas statute to
avoid some penalty associated with § 1983 (such as the
§ 1915(g) three strikes provision) and there was nothing
else suggesting such subterfuge).
The Motion to Require Plaintiff to Post Security
additionally asks that the court deem plaintiff a vexatious
litigant pursuant to Local Rule 151(b) and require that he
post a security before the case may continue. Under Eastern
District of California Local Rule 151(b),
[T]he Court may at any time order a party to give a security,
bond, or undertaking in such amount as the Court may
determine to be appropriate. The provisions of Title 3A, part
2, of the California Code of Civil Procedure, relating to
vexatious litigants, are hereby adopted as a procedural Rule
of this Court on the basis of which the Court may order the
giving of a ...