Young v. Rodriguez

          ORDER

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE

         I. Introduction

         Plaintiff, a state prisoner proceeding pro se, commenced this civil rights action pursuant to 42 U.S.C. § 1983 on October 26, 2015. On January 7, 2016, the undersigned granted plaintiff’s request to proceed in forma pauperis. (ECF No. 5.) In the operative amended complaint, plaintiff alleges that officials at California Health Care Facility violated his First Amendment right to freely exercise his religion when they did not let him wear a religious head covering to the visiting room in September 2014, effectively denying him a family visit. (ECF No. 9; see also ECF No. 5.) The court ordered service of the amended complaint on defendants Rodriguez, Lewis, Saephan, and Gill. (ECF No. 10.)

         Before the court is defendants’ 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. 15.) Plaintiff has opposed the motion, and defendants have replied. (ECF Nos. 16 & 17.)

         II. Motion to Revoke IFP Status

         28 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 fees. However,

[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).

         In 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.

         In 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., n.6.

         III. Discussion

         Defendants contend that plaintiff’s litigation history shows that he has at least three prior strikes. Per defendants’ request, the undersigned takes judicial notice of the following cases^[1]:

         1. Young v. Variz, No. C-07-0334 CRB (PR) (N.D. Cal.), dismissed January 24, 2007 for failure to state a claim under § 1983. (ECF No. 15-2, Defs’ Ex. B.) In opposition, plaintiff points out that he could have raised his state law claims in state court, and argues that he did not bring frivolous claims but “simply filed, ignorantly, in the wrong court.” (ECF No. 16 at 4.) The undersigned concludes that this dismissal constitutes a “strike” under § 1915(g).

         2. Young v. Cox, No. CV 13-4501 UA (AN) (C.D. Cal.), dismissed July 9, 2013 on the grounds of “frivolous, malicious, or failure to state a claim upon which relief may be granted.” (ECF No. 15-2, Defs’ Ex. E.) The court determined that leave to amend would be futile and noted that the dismissal constituted a “strike” under § 1915(g). (Id.) ...