United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
PLAINTIFF BE DENIED LEAVE TO PROCEED IN FORMA PAUPERIS UNDER
28 U.S.C. § 1915(G) AND THAT PLAINTIFF BE REQUIRED TO
PAY THE $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS
OBJECTIONS, IF ANY, DUE IN 14 DAYS
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Hammler (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action
pursuant to 42 U.S.C. § 1983. On August 23, 2019,
Plaintiff filed the Complaint commencing this action. (ECF
No. 1.) Plaintiff has not submitted an application to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915,
nor paid the $400.0 filing fee for this action.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
U.S.C. § 1915 governs proceedings in forma
pauperis. Section 1915(g) provides that “[i]n no
event shall a prisoner bring a civil action . . . under this
section if the prisoner has, on 3 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.” “This subdivision is commonly
known as the ‘three strikes' provision.”
Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
2005) (hereafter “Andrews”).
“Pursuant to § 1915(g), a prisoner with three
strikes or more cannot proceed IFP.” Id.;
see also Andrews v. Cervantes, 493 F.3d 1047, 1052
(9th Cir. 2007) (hereafter “Cervantes”)
(under the PLRA, “[p]risoners who have repeatedly
brought unsuccessful suits may entirely be barred from IFP
status under the three strikes rule[.]”). The objective
of the PLRA is to further “the congressional goal of
reducing frivolous prisoner litigation in federal
court.” Tierney v. Kupers, 128 F.3d 1310, 1312
(9th Cir. 1997).
are prior cases or appeals, brought while the plaintiff was a
prisoner, which were dismissed on the ground that they were
frivolous, malicious, or failed to state a claim, ”
Andrews, 398 F.3d at 1116 n.1 (internal quotations
omitted), “even if the district court styles such
dismissal as a denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008). Once a prisoner has accumulated three
strikes, he is prohibited by section 1915(g) from pursuing
any other IFP action in federal court unless he can show he
is facing “imminent danger of serious physical
injury.” See 28 U.S.C. § 1915(g);
Cervantes, 493 F.3d at 1051-52 (noting §
1915(g)'s exception for IFP complaints which
“make a plausible allegation that the prisoner faced
‘imminent danger of serious physical injury' at the
time of filing”).
the PLRA does not require a prisoner to declare that §
1915(g) does not bar his request to proceed IFP,
Andrews, 398 F.3d at 1119, “[i]n some
instances, the district court docket records may be
sufficient to show that a prior dismissal satisfies at least
one of the criteria under § 1915(g) and therefore counts
as a strike.” Id. at 1120. When applying 28
U.S.C. § 1915(g), however, the court must “conduct
a careful evaluation of the order dismissing an action, and
other relevant information, ” before determining that
the action “was dismissed because it was frivolous,
malicious or failed to state a claim, ” since
“not all unsuccessful cases qualify as a strike under
§ 1915(g).” Id. at 1121.
Ninth Circuit has 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).'”
Id. (quoting Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998)). Andrews further holds
that a case is “frivolous” for purposes of §
1915(g) “if it is of little weight or importance”
or “ha[s] no basis in law or fact.” 398 F.3d at
1121 (citations omitted); see also Neitzke v.
Williams, 490 U.S. 319, 325 (1989) (“[A]
complaint, containing as it does both factual allegations and
legal conclusions, is frivolous [under 28 U.S.C. § 1915]
where it lacks an arguable basis in either law or in fact . .
. . [The] term ‘frivolous,' when applied to a
complaint, embraces not only the inarguable legal conclusion,
but also the fanciful factual allegation.”). “A
case is malicious if it was filed with the intention or
desire to harm another.” Andrews, 398 F.3d at
1121 (quotation and citation omitted).
review of the actions filed by Plaintiff reveals that
Plaintiff is subject to 28 U.S.C. § 1915(g) and is
precluded from proceeding in forma pauperis unless
Plaintiff was, at the time the Complaint was filed, under
imminent danger of serious physical injury. Court records
reflect that on at least three prior occasions, Plaintiff has
brought actions while incarcerated that were dismissed as
frivolous, malicious, or for failure to state a claim upon
which relief may be granted.
1) Hammler v. Kernan, Civil No.
3:18-cv-01170-DMS-NLS (S.D. Cal. Dec. 10, 2018 Order of
dismissal for failure to state a claim and as frivolous)
2) Hammler v. Director of CDCR, Civil No.
1:17-cv-00097-NJV (N.D. Cal. Apr. 27, 2017 Order of dismissal
for failure to state a claim) (strike two);
3) Hammler v. Hough, Civil No. 3:18-cv-01319-LAB-BLM
(S.D. Cal. May 24, 2019 Order of dismissal as frivolous and
for failure to state a claim) (strike three); and
4) Hammler v. Hudson, Civil No.
2:16-cv-1153-JAM-EFB-P (E.D. Cal. May 17, 2019 Order of
dismissal for failure to exhaust administrative ...