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Johnson v. White

United States District Court, E.D. California

April 6, 2017

VINCE EDWARD JOHNSON, Plaintiff,
v.
C.O. WHITE, et al., Defendants.

          FINDINGS AND RECOMMENDATION RECOMMENDING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS BE DENIED [ECF No. 17]

         Plaintiff Vince Edward Johnson is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion to revoke Plaintiff's in forma pauperis status, filed February 2, 2017.

         I.

         RELEVANT HISTORY

         This action is proceeding for retaliation and conspiracy against Defendants White, Wilson and Carr.

         As previously stated on February 2, 2017, Defendants filed a motion to revoke Plaintiff's in forma pauperis status. Plaintiff requested and received two extensions of time to file an opposition; however, no opposition has been filed and the deadline to do so has expired. Accordingly, pursuant to Local Rule 230(1), the motion is deemed submitted for review without oral argument.

         II.

         DISCUSSION

         Defendants contend that prior to filing this action, Plaintiff brought three actions while incarcerated that were dismissed for failing to state a claim upon which relief may be granted, and Defendant requests that Plaintiff's in forma pauperis status be revoked and he be required to pay the $400.00 filing fee.

         A. Legal Standard

         The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). 28 U.S.C. § 1915(g) provides that “[I]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three 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.” “[I]f the language of a statute is clear, we look no further than that language in determining the statute's meaning, ” unless “what seems to be the plain meaning of the statute . . . lead[s] to absurd or impracticable consequences.” Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted).

         In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005), the Ninth Circuit explained, “The PLRA does not define the terms ‘frivolous, ' or ‘malicious, ' nor does it define dismissals for failure to ‘state a claim upon which relief could be granted'… We have held that the 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).” In defining the terms frivolous and malicious, the Andrews court held, “[W]e look to their ‘ordinary, contemporary, common meaning.'…Thus, a case is frivolous if it is ‘of little weight or importance: having no basis in law or fact'…A case is malicious if it was filed with the ‘intention or desire to harm another'”. Andrews, 398 F.3d at 1121 (internal quotations and citations omitted).

         The Andrews court further noted, “[n]ot all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim.” Id. at 1121. In making the determination whether a dismissal counts as a strike, it is the substance of the dismissal which is determinative, not the styling of the dismissal. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016); O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

         In seeking revocation of Plaintiff's in forma pauperis status, Defendants bear the burden of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Andrews, 398 F.3d at 1120. “Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by explaining why a prior dismissal should not count ...


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