United States District Court, N.D. California, Eureka Division
ORDER TO SHOW CAUSE
J. VADAS, United States Magistrate Judge
a state prisoner, has filed a pro se civil rights complaint
under 42 U.S.C. § 1983. Plaintiff has also filed an
application to proceed in forma pauperis. Plaintiff alleges
that he was denied medical treatment at Pelican Bay State
Prison. He is now incarcerated at California State Prison Los
Prison Litigation Reform Act of 1995 (“PLRA”),
enacted April 26, 1996, provides that a prisoner may not
bring a civil action or appeal a civil judgment under 28
U.S.C. § 1915 “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.” 28 U.S.C. §
1915(g). The phrase “fails to state a claim on which
relief may be granted, ” as used in § 1915(g),
“parallels the language of Federal Rule of Civil
Procedure 12(b)(6).” Andrews v. King, 398 F.3d
1113, 1121 (9th Cir. 2005) (internal quotation marks
omitted). A case is “frivolous” within the
meaning of § 1915(g) if “it is of little weight or
importance: having no basis in law or fact.”
Id. (internal quotation marks omitted). Further,
because § 1915(g) is a procedural rule that does not
raise retroactivity concerns, cases dismissed before the
effective date of § 1915(g) may be counted as qualifying
dismissals or “strikes.” See Tierney v.
Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). A court
may count as strikes dismissals of district court cases as
well as dismissals of appeals. See Rodriguez v.
Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does
not get three frivolous claims and three frivolous appeals
before being barred by § 1915(g)). A dismissal under
§ 1915(g) means that a prisoner cannot proceed with his
action as a pauper under § 1915(g), but he still may
pursue his claim if he pays the full filing fee at the outset
of the action.
appears that plaintiff has at least four strikes pursuant to
§ 1915(g). Two cases were dismissed for failure to state
a claim: Hollis v. Mazon-Alec, No. 03-6842 RFC DLB
(E.D. Cal.) Docket Nos. 23, 24; Hollis v.
Villanueus, No. 07-4538 TEH (E.D. Cal.) Docket No. 11.
These cases qualify as strikes.
appealed Hollis v. Villanueus to the Ninth Circuit.
Hollis v. Villanueu, 09-15523. The district court
found plaintiff's appeal was “frivolous and not
taken in good faith. See 28 U.S.C §
1915(a)(3).” Hollis v. Villanueus, No. 07-4538
TEH (E.D. Cal.) Docket No. 18. The Ninth Circuit denied
plaintiff's in forma pauperis application and ordered him
to pay the full filing fee and show cause why the district
court decision should not be summarily affirmed. Hollis
v. Villanueu, 09-15523 Docket No. 7. Plaintiff
ultimately failed to pay the filing fee and the appeal was
dismissed for failure to prosecute. Hollis v.
Villanueu, 09-15523 Docket No. 9.
a dismissal for failure to prosecute does not count as a
strike. See Bulter v. Department of Justice, 492
F.3d 440, 443 (D.C. Cir. 2007) (dismissal for failure to
prosecute made without regard to merits of claim does not
constitute a strike); but see Ruff v. Ramirez, 2007
WL 4208286 at *5 (S.D. Cal. 2007) (dismissal for failure to
prosecute by itself is not a strike, however such dismissal
qualifies as a strike when it is based on plaintiff's
failure to file an amended complaint after court dismissed
original complaint as frivolous and provided plaintiff leave
to amend). Because the district court specifically found that
plaintiff's appeal was frivolous, this court finds the
appeal to be a strike under § 1915(g).
Hollis v. Evans, No. 07-5389 TEH (E.D. Cal.),
plaintiff filed a habeas petition, but the district court
found the petition was based on a civil rights claim. Docket
No. 4. The court dismissed the case without
prejudice for plaintiff to file a civil rights action and
also informed plaintiff that the fee for a civil rights
action would be $350 if he chose to proceed. Id. The
district court case is not a strike under § 1915(g).
However, plaintiff appealed the dismissal to the Ninth
Circuit. Hollis v. Evan, 08-15037 (9th Cir.) The
district court found plaintiff's appeal was
“frivolous and not taken in good faith. See 28
U.S.C § 1915(a)(3).” Hollis v. Evans, No.
07-5389 TEH (E.D. Cal.) Docket No. 10. The appeal was
dismissed for failure to prosecute. Hollis v. Evan,
08-15037 (9th Cir.) Docket No. 11.
Ninth Circuit has held that dismissed habeas petitions do not
qualify as strikes. Andrews, 398 F.3d at 1122.
However, the Circuit noted:
We recognize, however, that some habeas petitions may be
little more than 42 U.S.C. § 1983 actions mislabeled as
habeas petitions so as to avoid the penalties imposed by 28
U.S.C. § 1915(g). In such cases, the district court may
determine that the dismissal of the habeas petition does in
fact count as a strike for purposes of § 1915(g).
Id. at 1123, n. 12.
case, the district court specifically found that the claims
were not properly brought in a habeas petition and should be
brought in a civil rights complaint. Rather than filing a
civil rights action, plaintiff appealed, and the appeal was
specifically found to be frivolous. Therefore, this court
find the appeal to be a strike under § 1915(g).
court found the first three cases cited above to be strikes
pursuant to § 1915(g) and denied plaintiff's request
proceed in forma pauperis. Hollis v. Bal, No.
13-2145 EFB (E.D. Cal.) Docket No. 6. Plaintiff appealed the
denial of his in forma pauperis request to the Ninth Circuit.
In re Marvin Hollis, 11-80161 (9th Cir.). The Ninth
Circuit dismissed the appeal, finding that it was so
insubstantial as to not warrant further review. Id.
Docket No. 9.
shall show cause within twenty-one (21) days, why this case
should not be deemed three strikes barred and the application
to proceed in forma pauperis denied. Failure to reply will
result in dismissal.