United States District Court, N.D. California
ORDER TO SHOW CAUSE WHY LEAVE TO PROCEED IN FORMA
PAUPERIS SHOULD NOT BE DENIED
HAYWOOD S. GILLIAM JR., UNITED STATES DISTRICT JUDGE.
Plaintiff,
an inmate at Pelican Bay State Prison, filed this pro
se civil rights action pursuant to 42 U.S.C. §
1983. He has requested leave to proceed in forma
pauperis. Dkt. No. 7. For the reasons set forth below,
the Court orders plaintiff to show cause, within
twenty-eight (28) days of the date of this
order, why plaintiff's request for leave to proceed
in forma pauperis should not be denied pursuant to
the three strikes provision set forth in 28 U.S.C. §
1915.
DISCUSSION
I.
PLRA's Three-Strikes Provision
This
action is governed by the Prison Litigation Reform Act of
1996 (“PLRA”) which was enacted, and became
effective, on April 26, 1996. The PLRA provides that a
prisoner may not bring a civil action under 28 U.S.C. §
1915, i.e., may not proceed in forma pauperis,
“if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action . . . 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).
For
purposes of a dismissal that may be counted under Section
1915(g), the Ninth Circuit gives this guidance: 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 apparently means the same thing.
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.
2005). A case “is frivolous if it is ‘of little
weight or importance: having no basis in law or
fact.'” Id. (citation omitted). “A
case is malicious if it was filed with the ‘intention
or desire to harm another.'” Id. (citation
omitted). “Not all unsuccessful cases qualify as a
strike under § 1915(g). Rather, § 1915(g) should be
used to deny a prisoner's IFP 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.” Id. at
1121.
A court
may count as strikes dismissals of district court cases as
well as dismissals of appeals. See Rodriguez v.
Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does
not get three frivolous claims and three frivolous appeals
before being barred by § 1915(g)). But the dismissal of
an appeal may count as a strike only if based on a qualifying
reason under § 1915(g). A district court is not required
to announce in an order that its dismissal constitutes a
strike under § 1915(g) for that dismissal to later count
as a strike. See Andrews, 398 F.3d at 1119 n.8. Nor
is the appellate court required to announce whether a
dismissal of an appeal may be counted as a strike in later
cases. See Furnace v. Giurbino, 838 F.3d 1019, 1029
(9th Cir. 2016).
In
determining whether a prior dismissal counts as a strike, the
Court “should look to the substance of the dismissed
lawsuit, and not to how the district court labelled or styled
the dismissal.” Harris v. Harris, 935 F.3d
670, 673 (9th Cir. 2019) (internal quotations marks and
citation omitted). To be counted as a strike, a case must be
dismissed in its entirety as frivolous, malicious or for
failure to state a claim. Id. at 674. Even if
certain claims in a lawsuit are dismissed as frivolous,
malicious or for failure to state a claim, that case will not
qualify as a strike if other claims are not dismissed or are
dismissed for different non-enumerated reasons. Id.
(declining to impose strike where actions were dismissed in
part for failure to serve, refusal to exercise supplemental
jurisdiction over state-law claims, and quasi-judicial
immunity).
A
dismissal based on immunity does not constitute a strike
because § 1915(g) omits the immunity language as a
ground for a strike. Harris, 935 F.3d at 675. There
are rare cases where immunity may be so clear on the face of
the complaint that dismissal may qualify as a strike for
failure to state a claim, or where immunity is so obvious
that the suit is frivolous and dismissal counts as a strike.
Id. at 676. “But these are exceptional cases
where the affirmative defense is readily apparent without
resort to any additional information outside the four corners
of the complaint. Such will rarely be the case with
immunity-based defenses.” Id.
A
dismissal for failure to exhaust available administrative
remedies based upon granting an unenumerated 12(b) motion to
dismiss in which evidence is considered, or upon granting a
motion for summary judgment, is not a dismissal for a
qualifying reason under § 1915(g) (i.e., not a dismissal
for failure to state a claim) and may not be considered a
strike. Richey v. Dahne, 807 F.3d 1202, 1208 (9th
Cir. 2015). But a dismissal for failure to exhaust available
administrative remedies counts as a strike if the failure to
exhaust was clear from the face of the complaint, which would
have been sufficient to dismiss under 12(b)(6). See
El-Shaddai v. Zamora, 833 F.3d 1036, 1043-44 (9th Cir.
2016).
II.
Plaintiff's Strikes
The
Court finds that, prior to this date, plaintiff has had at
least three cases dismissed that count as
“strikes.”[1] The Court takes judicial
notice[2] of: (1) Trujillo v. Sherman, C
No. 1:14-cv-01401-BAM (PC), 2015 WL 13049186 (E.D. Cal. Apr.
24, 2015), aff'd 632 Fed. App'x. 426 (9th
Cir. 2016); (2) Cruz v. Ruiz, C No.
1:15-cv-00975-SAB-PC, 2016 WL 8999460 (E.D. Cal. Jan. 6,
2016), aff'd 688 Fed. App'x 435 (9th Cir.
2017); (3) Cruz v. Gomez, C No. 1:15-cv-00859 EPG
(PC), 2017 WL 1355872 (E.D. Cal. Feb. 3, 2017),
aff'd 698 Fed. App'x 368 (9th Cir. 2017);
(4) Trujillo v. Gomez, C No. 14-cv-01797 DAD DLB,
2016 WL 1704178 (E.D. Cal. Apr. 28, 2016), report and
recommendation adopted by Order Adopting Findings and
Recommendations and Dismissing the Action for Failure to
Exhaust, Trujillo v. Gomez, C No. 14-cv-01797 DAD
DLB, Dkt. No. 49, entered Aug. 5, 2016, aff'd
688 Fed. App'x 452 (9th Cir. 2017); and (5) Trujillo
v. Gonzalez-Moran, C No. 17-15200 (9th Cir Aug. 21,
2017).[3] The Court reviews how the dismissals of
these actions constitute “strikes” for the
purposes of Section1915(g).
(1)
Trujillo v. Sherman, C No. 1:14-cv-01401-BAM (PC),
2015 WL 13049186 (E.D. Cal. Apr. 24, 2015). This action was
dismissed for failure to state a claim because the complaint
failed to comply with Fed.R.Civ.P. 8; but also because the
appeals coordinator defendant was not linked to, or liable
for, any of the alleged constitutional violations; the claims
against the CDCR and unidentified state agency defendants
were barred by the Eleventh Amendment; there is no respondeat
superior liability; and the failure-to-protect claims failed
to allege that defendants knew of, and disregarded any,
particular risk of harm. See Trujillo v. Gomez, 2015
WL 13049186, at *2-*4. The Eleventh Amendment bar was readily
apparent from the face of the complaint without resort to any
additional information outside the four corners of the
complaint. The complaint therefore failed to state a claim
upon which relief could be granted. The dismissal qualifies
as a strike. Andrews, 398 F.3d at 1121 (dismissal
for failure to state a claim within meaning of Fed.R.Civ.P.
12 qualifies as strike); Harris, 935 F.3d at 675-76
(dismissal of case on immunity grounds case may qualify as a
strike where immunity is so clear on face of complaint or
where immunity is so obvious that suit is frivolous).
(2)
Cruz v. Ruiz, C No. 1:15-cv-00975-SAB-PC, 2016 WL
8999460 (E.D. Cal. Jan. 6, 2016). This action was dismissed
for failure to state a claim because the property loss claim
was not cognizable under federal law because plaintiff had
not alleged compliance with the California Tort Claims Act
and because the bare allegations of retaliatory motive were
insufficient to state a claim for relief. The complaint
therefore failed to state a claim upon which relief could be
granted. The dismissal qualifies as ...