United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
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).
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.
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
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).
Plaintiff's Prior Actions
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).
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). The majority held that the
district court had “properly considered [the