United States District Court, N.D. California
PAUL C. HAMILTON, Plaintiff,
RON DAVIS, et al., Defendants.
ORDER TO SHOW CAUSE RE. CONTEMPLATED
CHEN-UNITED STATES DISTRICT JUDGE.
Hamilton, a prisoner at San Quentin State Prison, has filed
this pro se civil action and has applied to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915.
prisoner may not bring a civil action in forma
pauperis 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. § 1915(g). Section 1915(g)
requires that the court consider prisoner actions dismissed
before, as well as after, the statute's 1996 enactment.
Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir.
purposes of a dismissal that may be counted under §
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 § 1915(g)
purposes, so the mere fact that the prisoner has filed many
cases does not alone warrant dismissal of the present action
under § 1915(g). See Andrews, 398 F.3d at 1121.
Rather, dismissal of an action under § 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.” Andrews, 398 F.3d at 1121.
requires that a prisoner be given notice of the potential
applicability of § 1915(g), by either the district court
or the defendants, but also requires the prisoner to bear the
ultimate burden of persuasion that § 1915(g) does not
bar pauper status for him. Andrews, 398 F.3d at
1121. Andrews implicitly allows the court to sua
sponte raise the § 1915(g) problem, but requires
the court to notify the prisoner of the earlier dismissals it
considers to support a § 1915(g) dismissal and allow the
prisoner an opportunity to be heard on the matter before
dismissing the action. Andrews, 398 F.3d at 1120. A
dismissal under § 1915(g) means that a prisoner cannot
proceed with his action as a pauper under § 1915, but he
still may pursue his claims if he pays the full filing fee at
the outset of the action.
Hamilton is now given notice that the Court believes the
following dismissals may be counted as dismissals for
purposes of § 1915(g): (1) Hamilton v. Roe,
Central District of California No. 97-5176-CBM (dismissed for
failure to state a claim); (2) Hamilton v. Garcia,
Southern District of California No. 98-1769-K (granting Rule
12(b)(6) motion to dismiss for failure to state a claim); (3)
Hamilton v. Garcia, Southern District of California
No. 99-0493-JM (dismissed for failure to state a claim and
failure to exhaust administrative remedies); (4) Hamilton
v. Garcia, Southern District of California No. 99-0563-K
(dismissed for failure to state a claim); (5) Hamilton v.
Smith, Southern District of California No.
00-cv-1720-IEG-JFS (dismissed for failure to state a claim
and failure to pay filing fee); and (6) Hamilton v.
Jackson, U.S. Supreme Court No. 07-5683 (10/1/07 order
denying leave to proceed in forma pauperis and
dismissing petition for writ of certiorari pursuant to S.Ct.
Rule 39.8 (“If satisfied that a petition for a writ of
certiorari . . . is frivolous or malicious, the Court may
deny leave to proceed in forma pauperis”)). The Court
made its evaluation of these cases based on the dismissal
orders and docket sheets in them. See Andrews, 398
F.3d at 1120 (sometimes the docket records may be sufficient,
and sometime the actual court files may need to be
light of these dismissals, and because Mr. Hamilton does not
appear to be under imminent danger of serious physical
injury, he is ORDERED TO SHOW CAUSE in
writing filed no later than January 24,
2020, why in forma pauperis status should
not be denied and this action should not be dismissed
pursuant to 28 U.S.C. § 1915(g). In the alternative to
showing cause why the action should not be dismissed, Mr.
Hamilton may avoid dismissal by paying the full $400.00
filing fee by the deadline.