United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
R. THOMAS, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.
is a state prisoner proceeding pro se with a civil rights
action under 42 U.S.C. § 1983 and seeks leave to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915. He
claims defendant violated his right to access the court under
the First Amendment. Plaintiff has consented to magistrate
judge jurisdiction. (ECF Nos. 4, 5.) Presently before the
court is plaintiff's motion to proceed in forma pauperis.
(ECF No. 6.) For the reasons set forth below, the court finds
plaintiff fails to meet the standards to proceed in forma
pauperis and should be required to pay the filing fee if he
wishes to proceed with this action.
In Forma Pauperis Statute
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court to authorize the commencement and
prosecution of any suit without prepayment of fees by a
person who submits an affidavit indicating that the person is
unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action . . . [in
forma paupers] 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. § 1915(g).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)
(brackets in original)). If a prisoner has “three
strikes” under § 1915(g), the prisoner is barred
from proceeding in forma pauperis unless he meets the
exception for imminent danger of serious physical injury.
See Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th
Cir. 2007). To meet this exception, the complaint of a
“three-strikes” prisoner must plausibly allege
that the prisoner was faced with imminent danger of serious
physical injury at the time his complaint was filed. See
Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2015);
Andrews, 493 F.3d at 1055.
Has Plaintiff Accrued Three Strikes?
to the date plaintiff initiated this action on August 9,
2019, the following cases filed by plaintiff were dismissed
for the reasons set forth below:
1. Bontemps v. Lee (“Lee”), 2:12-cv-0771
KJN (E.D. Cal.): dismissed without leave to amend on January
31, 2013, for failure to state a claim (ECF No. 20);
2. Bontemps v. Kramer (“Kramer”),
2:06-cv-2483 RRB GGH (E.D. Cal.): dismissed without prejudice
on December 22, 2008, for failure to file an amended pleading
after dismissal upon screening (ECF Nos. 9, 12, 14);
3. Bontemps v. Gray (“Gray”),
2:07-cv-0710 MCD CMK (E.D. Cal.): dismissed without prejudice
on July 5, 2007, for failure to file an amended complaint
upon screening (ECF Nos. 3, 6, 7).
these four cases, only one clearly counts as a strike
(Lee, 2:12-cv-0771 KJN). Of the remaining cases,
both dismissals were for failure to file an amended complaint
and failure to comply with a court order. In each of these
cases, the underlying dismissal of the complaint was for
failure to state a claim.
Ninth Circuit has not addressed in a published opinion
whether dismissals of this sort count as a strike under
§ 1915(g), and district courts faced with this
question have reached different results. See Bontemps v.
Callison, 2:13-cv-1360 KJM AC, 2014 WL 996964, at *1
(E.D. Cal. Mar. 12, 2014) (declining to find that dismissals
for failure to file an amended complaint and failure to
prosecute were strikes because the underlying complaints had
been dismissed for failure to state a claim with leave to
amend); Keeton v. Cox, 2:06-cv-1094 GEB CKD, 2009 WL
650413, at *6 (E.D. Cal. Mar. 12, 2009), recommendation
adopted by 2010 WL 1173073 (E.D. Cal. Mar. 23, 2010)
(stating that a dismissal for failure to amend a complaint
dismissed with leave to amend is not a strike because the
underlying order recognized pleading defects could be
remedied); Hudson v. Bigney, 2:11-cv-3052 LKK AC,
2013 WL 6150789 (E.D. Cal. Nov. 22, 2013) (“A dismissal
for failure to ...