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Bontemps v. Thomas

United States District Court, E.D. California

October 9, 2019

GREGORY C. BONTEMPS, Plaintiff,
v.
R. THOMAS, Defendant.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         I. In Forma Pauperis Statute

         The 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).

         This “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.

         II. Has Plaintiff Accrued Three Strikes?

         Prior 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]:

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).

         Of 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.

         The Ninth Circuit has not addressed in a published opinion whether dismissals of this sort count as a strike under § 1915(g)[2], 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 ...


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