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Williams v. Logan

United States District Court, E.D. California

April 6, 2017

LANCE WILLIAMS, Plaintiff,
v.
LOGAN, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner, proceeding without counsel, in a civil action. He was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on September 28, 2016. ECF No. 8. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         On December 19, 2016, defendants filed a motion to revoke plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g), and to declare plaintiff a three-strike litigant. ECF No. 15. Plaintiff filed an opposition to the motion. ECF No. 17.

         I. Legal Standards

         Title 28 U.S.C. § 1915(g) is part of the Prison Litigation Reform Act (“PLRA”). The PLRA was intended to eliminate frivolous lawsuits, and its main purpose was to address the overwhelming number of prisoner lawsuits. Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). Title 28 U.S.C. § 1915(g) of the PLRA 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). As the Supreme Court stated, this “three strikes rule” was part of “a variety of reforms designed to filter out the bad claims filed by prisoners and facilitate consideration of the good.” Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015) (quoting Jones v. Block, 549 U.S. 199, 204 (2007)). If a prisoner has “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). The Ninth Circuit has held that the complaint of a “three-strikes” prisoner must plausibly allege that the prisoner was faced with imminent danger of serious physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2014); Andrews, 493 F.3d at 1055.

         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 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 or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). Title 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). Defendants have 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)). To determine whether a dismissal qualifies as a strike, a “reviewing court looks to the dismissing court's action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citing King, 398 F.3d at 1121), cert. denied, 135 S.Ct. 57 (2014).

         II. Plaintiff's Prior Actions

         Review of court records reveals that prior to October 5, 2015, the date the instant action was filed, three lawsuits filed by plaintiff had been dismissed on screening as barred by the statute of limitations:

1. Williams v. Aparicio, No. 2:14-cv-08640 (C.D. Cal. Feb. 5, 2015). ECF No. 15-3 at 13-14; see also ECF No. 15-3 at 7-12 (Report and Recommendation).
2. Williams v. Kerkfoot, No. 2:14-cv-07583 (C.D. Cal. May 15, 2015). ECF No. 15-3 at 35-36; see also ECF No. 15-3 at 23-34 (Report and Recommendation).
3. Williams v. Young, No. 2:14-cv-8037 (C.D. Cal. May 19, 2015). ECF No. 15-3 at 46-52 (Memorandum and Order).

         The first question before the court is whether the dismissals of plaintiff's prior three actions are properly characterized as “strikes” under 28 U.S.C. § 1915(g). In Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015), the United States Court of Appeals for the Ninth Circuit affirmed a district court decision dismissing a complaint on screening as barred by the statute of limitations and holding that the dismissal “constituted a ‘strike' against [the plaintiff] pursuant to 28 U.S.C. § 1915(g).” Belanus, 796 F.3d at 1023. The issues before the panel in Belanus were (1) whether the plaintiff in that case could “assert a cognizable claim for equitable tolling of the statute of limitations, ” id., and (2) whether the dismissal could count as a strike where the plaintiff had paid the filing fee for the lawsuit. Id. at 1027. Two members of the panel held the plaintiff could not demonstrate entitlement to equitable tolling and that a fee-paid complaint could count as a “strike” under 28 U.S.C. § 1915(g).[1] The majority held that the district court had “properly considered [the ...


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