United States District Court, E.D. California
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.) ...