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Mester v. Malakkla

United States District Court, E.D. California

October 18, 2019

MORRIS MESTER, Plaintiff,
v.
N. MALAKKLA, et al. Defendants.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on August 30, 2017. See ECF No. 6. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         On August 5, 2019, defendants filed a motion to revoke plaintiff's in forma pauperis status on the grounds that plaintiff is a three-strikes litigant within the meaning of 28 U.S.C. § 1915(g). See ECF No. 41. On October 2, 2019, plaintiff filed a motion for sanctions, dismissal or an entry of default. ECF No. 54. For the reasons stated below, the undersigned recommends that defendants' motion to revoke plaintiff's in forma pauperis status be granted, and that plaintiff be ordered to pay the filing fee prior to proceeding any further with this action. The undersigned shall also recommend that plaintiff's motion for sanctions, dismissal or an entry of default be denied as premature.

         I. APPLICABLE LAW

         28 U.S.C. § 1915(g) states:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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.

         28 U.S.C. § 1915(g).

         “It is well-settled that, in determining a [Section] 1915(g) ‘strike,' the reviewing court looks to the dismissing court's action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be used to deny a prisoner's in forma pauperis 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 1113, 1121 (9th Cir. 2006) (brackets added).

         II. SECTION 1915(G) “STRIKE” CASES

         Defendants identify three cases of plaintiff s that were fully adjudicated prior to the filing of the instant action and that constitute strikes under 28 U.S.C. § 1915(g):

. Mester v. Dickinson, No. 2:09-cv-3307 KJM KJN, (E.D. Cal. Jan. 29, 2013) (“Dickinson”);
. Mester v. Sacks, No. 07-16841, (9th Cir. Mar. 20, 2008) (“Sacks”), and
. Mester v. Paramo, No. 13-55501, (9th Cir. May 29, 2013) (“Paramo”).[1]

See ECF No. 41 at 5-6. Defendants argue that because these cases are strikes and because plaintiff did not make a plausible allegation that he faced imminent danger of serious physical injury at the time he filed the instant complaint, plaintiffs in forma pauperis status should be revoked, and he should be required to pay the ...


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