United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING
DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA
PAUPERIS STATUS BE DENIED [ECF No. 17]
Vince Edward Johnson is appearing pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C.
before the Court is Defendants' motion to revoke
Plaintiff's in forma pauperis status, filed February 2,
action is proceeding for retaliation and conspiracy against
Defendants White, Wilson and Carr.
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.
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
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).
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
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).
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 ...