United States District Court, N.D. California
KEVIN R. SCHRUBB, Plaintiff,
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.)
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
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
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).
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
28 U.S.C. § 1915(g)
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).
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.
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.
Plaintiffs Prior "Strikes"
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.)
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).
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 §
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