United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
v.
NARINDER SAUKHLA, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
Plaintiff
is a state prisoner proceeding pro se with a civil rights
action pursuant to 42 U.S.C. § 1983.
I.
Three Strikes Analysis
Plaintiff
has not yet submitted an application to proceed in forma
pauperis in this case nor has he paid the required filing fee
of $350.00 plus the $50.00 administrative fee. However, as
explained below, plaintiff will not be given the opportunity
to submit an application to proceed in forma pauperis because
he has accrued three strikes under 28 U.S.C. § 1915(g)
and he has not shown that he is under imminent danger of
serious physical injury. Instead, the court will recommend
that plaintiff be required to pay the $400.00 in required
fees or suffer dismissal of the complaint.
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 fees. However,
[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).
Inspection
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
plaintiff:[1]
1. Bontemps v. McKramel, E.D. Cal. No. 2:06-cv-2483
JAM GGH (complaint dismissed with leave to amend for failure
to state a claim, case dismissed on December 22, 2008, for
failure to file an amended complaint)
2. Bontemps v. McKramer, E.D. Cal. No. 2:06-cv-2580
GEB GGH (complaint dismissed with leave to amend for failure
to state a claim, case dismissed on August 30, 2007, for
failure to file an amended complaint)
3. Bontemps v. Gray, E.D. Cal. No. 2:07-cv-0710 MCE
CMK (complaint dismissed with leave to amend for failure to
state a claim, case dismissed on July 5, 2007, for failure to
file an amended complaint)
4. Bontemps v. Lee, E.D. Cal. No. 2:12-cv-0771 KJN
(complaint dismissed without leave to amend for failure to
state a claim on January 31, 2013)
5. Bontemps v. Aquino, E.D. Cal. No. 2:12-cv-2406
EFB (complaint dismissed without leave to amend for failure
to state a claim on July 9, 2013)
All of
the preceding cases were dismissed well in advance of the
December 24, 2019 filing of 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, ...