United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983. On December 20,
2019, the undersigned filed findings and recommendations that
recommended plaintiff's motion to proceed in forma
pauperis be denied on the ground that plaintiff had accrued
three strikes under 28 U.S.C. § 1915(g). ECF No. 5.
Plaintiff has objected to the findings and recommendations on
the ground that one of the cases identified, Dunigan v.
California Department of Corrections, E.D. Cal. No.
2:01-cv-1591 WBS JFM, is not a strike because he was not
incarcerated at the time he filed the complaint in that case.
ECF No. 7 at 1-2. He does not raise any objections related to
the other two cases identified as strikes or to the finding
that he failed to allege facts demonstrating imminent danger
of serious physical injury.
that plaintiff was not in custody at the time he filed the
complaint in No. 2:01-cv-1591 WBS JFM, he is correct that
that case cannot count as a strike. The December 20, 2019
findings and recommendations will therefore be withdrawn.
However, the court has identified another case, Dungan v.
United States, E.D. Cal. No. 2:10-cv-2965 MCE EFB, which
was clearly initiated while plaintiff was incarcerated and
was dismissed on grounds that constitute a strike.
Accordingly, the undersigned will once again recommend that
plaintiff's motion to proceed in forma pauperis be
pending before the court is plaintiff's motion for
miscellaneous relief styled as a “sovereign motion
invoking global street kraft upon stayed release and criminal
enforcements.” ECF No. 6. The motion states that it
“arrises [sic] out of a dual intentionally false and
erroneous Sacto., County convictions . . . both of which are
‘freestanding actual innocence claims.'”
Id. at 1. The motion appears to be a mishmash of
multiple motions and documents covering a variety of issues
and is comprised predominately of citations to various
statues without any cognizable request for relief. The motion
will therefore be denied.
Three Strikes Analysis
seeks leave to proceed in forma pauperis under 28 U.S.C.
§ 1915(a). ECF No. 3. The Prison Litigation Reform Act
of 1995 (PLRA) permits any court of the United States 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
[i]n no event shall a prisoner bring a civil action or appeal
a judgement in a civil action or proceeding under this
section if the prisoner has, on 3 or more 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). The plain language of the statute
makes clear that a prisoner is precluded from bringing a
civil action or an appeal in forma pauperis if the prisoner
has brought three frivolous actions and/or appeals (or any
combination thereof totaling three). Rodriguez v.
Cook, 169 F.3d 1176, 1178 (9th Cir. 1999).
“[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. 2005). “[W]hen
a district court disposes of an in forma pauperis complaint
‘on the grounds that [the claim] is frivolous,
malicious, or fails to state a claim upon which relief may be
granted,' such a complaint is ‘dismissed' for
purposes of § 1915(g) even if the district court styles
such dismissal as denial of the prisoner's application to
file the action without prepayment of the full filing
fee.” O'Neal v. Price, 531 F.3d 1146, 1153
(9th Cir. 2008) (second alteration in original). Dismissal
also counts as a strike under § 1915(g) “when (1)
a district court dismisses a complaint on the ground that it
fails to state a claim, (2) the court grants leave to amend,
and (3) the plaintiff then fails to file an amended
complaint” regardless of whether the case was dismissed
with or without prejudice. Harris v. Mangum, 863
F.3d 1133, 1142-43 (9th Cir. 2017).
of other cases filed by plaintiff in this court has led to
the identification of at least three cases brought by
plaintiff that qualify as strikes. The court takes judicial
notice of the following lawsuits filed by
1. Dunigan v. United States, E.D. Cal. No.
2:10-cv-2965 MCE EFB (first amended complaint dismissed on
May 18, 2012, without leave to amend for failure to comply
with Federal Rule of Civil Procedure 8 where findings and
recommendations included explicit finding that complaint
failed to state a claim, appeared to be frivolous, and
“lacks merit and ‘cannot possibly be
2. Dunigan v. United States, E.D. Cal. No.
2:10-cv-2992 JAM KJN (case dismissed as frivolous on May 2,
3. Dunigan v. United States, E.D. Cal. No.
2:12-cv-3048 TLN CKD (complaint dismissed with leave to amend
for failure to state a claim, and case dismissed on September
16, 2013, for failure to file an amended complaint).
the preceding cases were dismissed well in advance of the
December 8, 2019 filingof the instant action and none of the
strikes have been overturned. Therefore, this court finds
that plaintiff is precluded from proceeding in forma pauperis
unless she is “under imminent danger of serious
physical injury.” 28 U.S.C. § 1915(g). To satisfy
the exception, plaintiff must have alleged facts that
demonstrate that she was “under imminent danger of
serious physical injury” at the time of filing the
complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053
(9th Cir. 2007) (“[I]t is the circumstances at the time
of the filing of the complaint that matters for purposes of
the ‘imminent danger' exception to §
1915(g).”); see also, Abdul-Akbar v.
McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001);
Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th
Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883,
885 (5th Cir. 1998).
complaint names ninety-six defendants, including individuals
and both private and government entities, and makes
allegations regarding plaintiff's conviction, his ability
to use the administrative appeals process, interference with
previous lawsuits, unspecified retaliation, and various
conspiracies. However, none of the allegations demonstrate an
imminent risk of serious physical injury at the time of
filing, and the ...