United States District Court, E.D. California
PABLO P. PINA, Plaintiff,
SCOTT KERNAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA
PAUPERIS STATUS [ECF NO. 33]
Pablo P. Pina is appearing pro se and in forma pauperis in
this civil rights action pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion to revoke
Plaintiff's in forma status, filed May 9, 2019.
action is proceeding against Defendants Urban, Peterson,
Garcia, Leshniak, Davey, Hoggard, Kernan, and Hubbard for
retaliation, conspiracy to retaliate, and a due process claim
under the Fourteenth Amendment.
previously stated, on May 9, 2019, Defendants filed a motion
to revoke Plaintiff's in forma pauperis status pursuant
to 28 U.S.C. § 1915(g). Plaintiff filed an opposition on
June 17, 2019, and Defendants filed a reply on June 24, 2019.
Local Rule 230(1). Accordingly, Defendants' motion is
deemed submitted for review without oral argument.
Prison Litigation Reform Act of 1995 (PLRA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011). 28 U.S.C. § 1915(g) provides
that “[I]n no event shall a prisoner bring a civil
action . . . under this section 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.” “[I]f the
language of a statute is clear, we look no further than that
language in determining the statute's meaning, ”
unless “what seems to be the plain meaning of the
statute . . . lead[s] to absurd or impracticable
consequences.” Seattle-First Nat'l Bank v.
Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal
quotations and citations omitted).
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.
2005), the Ninth Circuit explained, “The PLRA does not
define the terms ‘frivolous,' or
‘malicious,' nor does it define dismissals for
failure to ‘state a claim upon which relief could be
granted'… We have held that the phrase
‘fails to state a claim on which relief may be
granted,' as used elsewhere in § 1915,
‘parallels the language of Federal Rule of Civil
Procedure 12(b)(6).” In defining the terms frivolous
and malicious, the Andrews court held, “[W]e
look to their ‘ordinary, contemporary, common
meaning.'…Thus, a case is frivolous if it is
‘of little weight or importance: having no basis in law
or fact'…A case is malicious if it was filed with
the ‘intention or desire to harm another'”.
Andrews v. King, 398 F.3d at 1121 (internal
quotations and citations omitted).
Andrews court further noted, “[n]ot all
unsuccessful cases qualify as a strike under § 1915(g).
Rather, § 1915(g) should be used to deny a
prisoner's IFP status only when, after careful
evaluation of the order dismissing an action, and other
relevant information, the district court determines that the
action was dismissed because it was frivolous, malicious or
failed to state a claim.” Andrews v. King, 398
F.3d at 1121. In making the determination whether a dismissal
counts as a strike, it is the substance of the dismissal
which is determinative, not the styling of the dismissal.
El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir.
2016); O'Neal v. Price, 531 F.3d 1146, 1153 (9th
seeking revocation of Plaintiff's in forma pauperis
status, Defendants bear the burden of establishing that
Plaintiff has three or more strikes within the meaning of
section 1915(g), which requires the submission of evidence
sufficient to demonstrate at least three prior qualifying
dismissals. Andrews v. King, 398 F.3d 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…. [T] prisoner
bears the ultimate burden of persuading the court that §
1915(g) does not preclude IFP status.” Id.
Defendants' Request for Judicial Notice
request that the Court take judicial notice of existence and
content of the court records from Plaintiff's previous
civil court proceedings. (ECF No. 29-2, Exs. A-H.)
well established that a court may take judicial notice of its
own records. Trigueros v. Adams, 658 F.3d 983, 987
(9th Cir. 2011); Reyn's Pasta Bella, LLC v. Visa USA,
Inc.,442 F.3d 741, 746 n.6 (9th Cir. 2006);
Chandler v. United States, 378 F.2d 906, 909 (9th
Cir. 1967). Therefore, the court grants Defendants'
motion to take judicial notice of court documents and ...