United States District Court, N.D. California
ANDREW R. LOPEZ, Plaintiff,
G. OLSON, et al., Defendants.
ORDER TO SHOW CAUSE
PHYLLIS J. HAMILTON UNITED STATES DISTRICT 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 form a pauperis. Plaintiff alleges
that he is receiving inadequate medical care at Pelican Bay
State Prison. He states that his prescription for artificial
tears was renewed at half the dosage and his Gabapentin pain
medication was reduced and eventually phased out. Plaintiff
argues that medical staff will only provide opioid pain
medication in very rare cases. Plaintiff states he is in
severe pain and has trouble sleeping and performing daily
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 three strikes pursuant to
§ 1915(g). In Lopez v. Yamat, No. 07-cv-1765
FRZ (E.D. Cal. Jan. 23, 2009), the court dismissed
plaintiff's action for his repeated failure to comply
with Rules 8 and 10 of the Federal Rules of Civil Procedure.
The Ninth Circuit affirmed the dismissal for failing to
comply with Rule 8. See Docket No. 33. The district
court dismissal constitutes a strike as frivolous and for
failure to state a claim.
Lopez v. Cate, No. 11-cv-0806 MCE KJN (E.D. Cal.
Sep. 29, 2011), the court dismissed plaintiff's claims as
barred by the statute of limitations. The Ninth Circuit did
not allow the appeal to proceed because it was so
insubstantial as to not warrant further review. Docket No.
29. The statute of limitations dismissal by the district
court constitutes a strike. See Belanus v. Clark,
796 F.3d 1021 (9th Cir. 2015) (affirming the strike finding
for a case that was dismissed as untimely).
Lopez v. Beard, No. 13-cv-1556 LJO GSA (E.D. Cal.
May 22, 2015), the court dismissed plaintiff's claims for
failure to state a claim. Plaintiff challenged his denial of
parole by the Board of Parole Hearings and the rules and
regulations that were employed. The court noted that
plaintiff could file a habeas petition to challenge the
denial so dismissed the case without prejudice. However,
court records indicate that plaintiff had already filed many
habeas petitions including a petition challenging the same
parole denial. See Lopez v. Brown, No. 12-cv-1172
AWI BAM (E.D. Cal. Oct. 9, 2012). The court denied the
petition on the merits approximately one year before
plaintiff filed the civil rights action. The Ninth Circuit
did not allow the appeal in the civil rights action to
proceed because it was so insubstantial as to not warrant
further review. Docket No. 21 in Lopez v. Beard, No.
13-cv-1556 LJO GSA. Therefore, the district court dismissal
constitutes a strike for failure to state a claim.
shall show cause by June 26, 2017, 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
undersigned, hereby certify that I am an employee in the
Office of the Clerk, U.S. District Court, Northern District
June 2, 2017, I SERVED a true and correct copy(ies) of the
attached, by placing said copy(ies) in a postage paid
envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said