United States District Court, E.D. California
BRIAN L. BROWN, Plaintiff,
GARDNER, et al., Defendants.
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. Defendants have filed a
motion for an order revoking plaintiff’s in forma
pauperis status. ECF No. 13. For the following reasons, the
motion must be granted.
action proceeds on the complaint filed June 5, 2015. ECF No.
1. Plaintiff alleges that he was injured when he fell from a
top bunk. Id. at 7. According to plaintiff, he was
assigned to the top bunk in violation of a preexisting
medical order for a lower bunk assignment. Id. Each
defendant, in one way or another, ignored plaintiff’s
requests for assistance in being assigned to a lower bunk.
Id. at 7-11.
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).
is “frivolous” under § 1915(g) “if it
is of little weight or importance: having no basis in law or
fact.” King, 398 F.3d at 1121 (internal
quotation marks omitted). “A case is malicious if it
was filed with the intention or desire to harm
another.” Id. And a case “fails to state
a claim upon which relief may be granted” if it fails
to state a claim under Federal Rule of Civil Procedure
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. King, 398 F.3d at 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. Id.
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). King, 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.
identify three cases as strikes within the meaning of §
(1) Brown v. Warden, North Kern State Prison, et al.
(E.D. Cal. Case No. 1:12-cv-01707-DLB) (hereinafter
“Brown I”). In Brown I,
plaintiff challenged the computation of his sentence credits.
The court dismissed the case without prejudice because
success in the action would have necessarily impacted the
duration of plaintiff’s confinement, and plaintiff had
not obtained a favorable result in a habeas action
challenging the sentence-credit computation. ECF No. 14 at
8-10 (applying the rule of Heck v. Humphreys, 512
U.S. 477 (1994)).
(2) Brown v. North Kern State Prison, et al. (E.D.
Cal. Case No. 2:13-cv-02425-CKD) (hereinafter
“Brown II”). Plaintiff again challenged
the computation of his sentence credits in Brown II.
And, again, the court dismissed the complaint, referring to
it as “essentially an improper second attempt to
present claims which cannot be presented in a § 1983
action [before a favorable ruling on the claims has been
obtained in a habeas action].” ECF No. 14 at 16-18. The
court noted that plaintiff had also filed a federal habeas
petition presenting the same claims, which was pending at the
time of the Brown II dismissal (and was eventually
dismissed after consideration of the merits): Brown v.
Swarthout (E.D. Cal. Case No. 2:13-cv-01406-TLN-CKD).
(3) Brown v. North Kern State Prison, et al. (Ninth
Cir. Case No. 13-15732) (hereinafter “Brown
III”). In Brown III, plaintiff appealed
the dismissal of Brown II. ECF No. 14 at 22. The
appellate court denied plaintiff’s motion to proceed in
forma pauperis after finding the appeal
“frivolous” under 28 U.S.C. § 1915(a).
Id. at 22-23. The appeal was later dismissed when
plaintiff failed to pay the filing fee. Id. at 24.
have discharged their burden of presenting the court with
sufficient evidence that these three cases qualify as
strikes. Plaintiff failed to state a claim upon which relief
may be granted in Brown I, because he had not
overcome the Heck bar prior to filing it. See,
e.g., Martinez v. State, No. 1:15-cv-01541-LJO-SAB (PC),
2015 U.S. Dist. LEXIS 153425, at *4-5 (E.D. Cal. Nov. 10,
2015) (noting that, although the Ninth Circuit has not
addressed the issue yet, district courts within the circuit
have concluded that a dismissal pursuant to Heck
counts as a strike under § 1915(g), and collecting
cases); Hardaway v. Days, No. C 15-0495 RMW (PR),
2015 U.S. Dist. LEXIS 152682, at *4-5 (N.D. Cal. Nov. 10,
2015) (“[W]hen a ...