United States District Court, N.D. California
ANTHONY R. TURNER, Plaintiff,
EDMUND G. BROWN, et al., Defendants.
ORDER TO SHOW CAUSE
GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE.
a California state prisoner proceeding pro se, filed
a civil rights complaint under 42 U.S.C. § 1983, seeking
damages for alleged civil rights violations. Plaintiff has
also filed a motion for leave to proceed in forma
pauperis (“IFP”). Dkts. 6, 11, 13. For the
reasons stated below, the Court orders Plaintiff to show
cause why his motion for leave to proceed IFP should not be
denied, and this action should not be dismissed pursuant to
28 U.S.C. § 1915(g).
Prison Litigation Reform Act of 1995 (“PLRA”) was
enacted, and became effective, on April 26, 1996. It provides
that a prisoner may not bring a civil action IFP under 28
U.S.C. § 1915 “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.” 28 U.S.C. §
purposes of a dismissal that may be counted under section
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)
(citation omitted). Only cases within one of these three
categories can be counted as strikes for section 1915(g)
purposes. See Id . Dismissal of an action under
section 1915(g) should only occur when, “after careful
evaluation of the order dismissing an [earlier] 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.” Id.
requires that the prisoner be given notice of the potential
applicability of section 1915(g), by either the district
court or the defendants, but also requires the prisoner to
bear the ultimate burden of persuasion to show that section
1915(g) does not bar pauper status in this case. Id.
Andrews implicitly allows the court to raise the section
1915(g) problem sua sponte, but requires the court
to notify the prisoner of the earlier dismissals it considers
to support a section 1915(g) dismissal and allow the prisoner
an opportunity to be heard on the matter before dismissing
the action. See Id . at 1120. A dismissal under
section 1915(g) means that a prisoner cannot proceed with his
action as a pauper under section 1915(g), but he still may
pursue his claims if he pays the full filing fee at the
outset of the action.
review of the dismissal orders in Plaintiff’s prior
prisoner actions reveals that he has had at least three such
cases dismissed on the ground that they were frivolous,
malicious, or failed to state a claim upon which relief may
be granted. Plaintiff is now given notice that the Court
believes the following federal district court dismissals may
be counted as dismissals for purposes of section 1915(g): (1)
Turner v. California Supreme Court, et al., No. C
13-0634 JSW (PR) (N.D. Cal. May 10, 2013) (complaint
dismissed for failure to state a claim; U.S. Court of Appeals
did not allow appeal to proceed because claims were “so
insubstantial as to not warrant further review”); (2)
Turner v. Thomas, No. 2:10-cv-02369 MCE EFB (E.D.
Cal. July 9, 2012) (dismissed for failure to prosecute and
failure to state a claim); (3) Turner v. Gipson, No.
1:11-cv-1395 GBC P (E.D. Cal. Apr. 13, 2012) (dismissed for
failure to state a claim); (4) Turner v. Lewis, No.
C 10-5482 JSW (PR) (N.D. Cal. May 31, 2011) (dismissed after
failure to correct errors cited in original complaint in
improperly joining parties and claims); and (5) Turner v.
United States of America, No. 2:08-CV-02087 EFB (E.D.
Cal. Dec. 7, 2010) (dismissed for failure to file amended
complaint and failure to state a claim). The Court has
evaluated each of these cases based on their dismissal
orders. See Andrews, 398 F.3d at 1120.
light of these dismissals, and because Plaintiff does not
appear to be under imminent danger of serious physical
injury, see Andrews v. Cervantes, 493 F.3d 1047,
1053 (9th Cir. 2007), Plaintiff is ORDERED TO SHOW CAUSE in
writing no later than twenty-eight (28) days
from the date of this Order why his motion for leave to
proceed IFP should not be denied and this action should not
be dismissed pursuant to 28 U.S.C. § 1915(g). If
Plaintiff is so inclined, he may avoid dismissal by paying
the $400.00 filing fee. In any event, the Court will continue
to review under section 1915(g) all future actions filed by
Plaintiff while he is incarcerated and in which he seeks IFP
to file a timely response or failure to pay the full filing
fee in will result in the dismissal of this action ...