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Schrubb v. Jager

United States District Court, N.D. California

May 22, 2018

KEVIN R. SCHRUBB, Plaintiff,
v.
F. N. U. JAGER, et al., Defendants.

          ORDER GRANTING MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS; DIRECTING PLAINTIFF TO PAY THE FULL FILING FEE (DOCKET NOS. 71, 72 & 79.)

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         Plaintiff, a California inmate, filed a pro se civil rights complaint under 42 U.S.C. § 1983 against officials at Pelican Bay State Prison ("PBSP"), where Plaintiff was formerly incarcerated. On February 6, 2015, the Court granted Defendants' motion to revoke Plaintiff s in forma pauperis ("IFP") status. (See Docket No. 51.) After Plaintiff failed to pay the filing fee, the Court dismissed the action on March 9, 2015. (See Docket No. 53.) Plaintiff appealed to the United States Court of Appeals for the Ninth Circuit. (See Docket No. 55.) The matter was reopened after the Ninth Circuit vacated and remanded for a determination of whether two of the lawsuits identified as strikes still qualified in light of its recent decision in Washington v. LA. Cty. Sheriffs Dep't, 833 F.3d 1048 9th Cir. 2016), which was retroactively applied. (See Docket No. 60.)

         The Court directed Defendants to resubmit a motion to revoke Plaintiffs IFP states, and therein to specifically discuss whether the two lawsuits discussed by the Ninth Circuit still qualified as strikes under Washington. (Docket No. 64.) Defendants filed a motion to revoke Plaintiffs IFP status, (Docket No. 71, hereafter "Mot."), and a related Request for Judicial Notice, (Docket No. 72, hereafter "Defs.' RJN"). Plaintiff filed an opposition, (Docket No. 78), and a related Request for Judicial Notice, (Docket No. 79, hereafter "Pl.'s RJN"). Defendants filed a reply. (Docket No. 80.) Defendants thereafter filed a statement of recent decision under Local Rule 7-3(d), (Docket No. 83), to which Plaintiff filed an opposition, (Docket No. 85[1]).

         For the reasons discussed below, the motion to revoke Plaintiffs IFP status is GRANTED. Plaintiff is granted fourteen (14) days to pay the full filing fee or the case will be dismissed without prejudice.

         DISCUSSION

         A. 28 U.S.C. § 1915(g)

         The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became n effective, on April 26, 1996. It provides that a prisoner may not bring a civil action or appeal a judgment in a civil action or proceeding under 28 U.S.C. § 1915 (i.e., may not proceed in forma pauperis) "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). Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).

         For purposes of § 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is '" of little weight or importance; having no basis in law or fact/" and the word "malicious" refers to a case "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) ("Andrews F) (citation omitted). Defendant bears the burden of establishing that Plaintiff has three or more qualifying dismissals under § 1915(g) (or "strikes"), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Id. 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 as a strike." Id. at 1120. The prisoner must be given notice of the potential disqualification under § 1915(g) -- by either the district court or the defendants - but the prisoner bears the ultimate burden of persuasion that § 1915(g) does not bar pauper status for him. Id.

         B. Plaintiffs Prior "Strikes"

         Defendants assert that the same three lawsuits they identified in their original motion to revoke Plaintiffs IFP status constitute strikes: (1) Schrubb v. CDC, No. 2:04-cv-2704-GEB-CMK (E.D. Cal. Dec. 27, 2004) (hereafter "CDC); (2) Schrubb v. Bonner, et al9 No. 2:05-cv-01508-LKK-EFB (E.D. Cal. Jan. 6, 2006) (hereafter "Bonner"); and (3) Schrubb v. Tilton, et al., No. 3:09-cv-02197-JSW (N.D. Cal. May 19, 2009) (hereafter "Tilton"). (Mot. at 3-4; Defs.'s RJN, Exs. A-U, W-BB.) In addition, Defendants argue that Plaintiff has a fourth strike from an action he filed on March 19, 1996, while -s previously incarcerated in Virginia: Schrubb v. Byrd, et al., No. 7:96-cv-00282-JCT (W.D. Va.) (hereafter "Byrd"). (Mot. at 4; Defs.' RJN, Exs. CC-EE.)

         Defendants' request for judicial notice of the court records for these four lawsuits, (Docket No. 72), is GRANTED, as is Plaintiffs request for judicial notice of additional court records from these same lawsuits, (Docket No. 79). See Fed. R. Evid. 201(b).

         1. CDC

         In CDC, the district court adopted the findings and recommendations of the magistrate judge and dismissed the first amended complaint for failure to state a claim upon which relief can be granted on January 26, 2006. (Defs.' RJN, Exs. A-E.) Defendants assert that failure to state a claim is a qualifying reason for a strike under ยง 1915(g). (Mot. at 6.) Nowhere in his opposition does Plaintiff challenge this assertion. Accordingly, the Court finds that Defendants have met their burden of establishing ...


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