United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS REGARDING
DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS (DOCUMENT 14)
L. BECK UNITED STATES MAGISTRATE JUDGE.
Issac Da’Bour Dawson (“Plaintiff”), a state
inmate in the custody of the California Department of
Corrections and Rehabilitation (“CDCR”), is
proceeding pro se and in forma pauperis in this civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff’s
December 14, 2015, complaint states the following claims: (1)
a Fourth Amendment claim against Defendants Johnson, Guzman,
Gonzales and Sheldon; and (2) a First Amendment retaliation
claim against Defendants Guzman, Gonzales and Marsh.
15, 2016, Defendants Johnson, Gonzales, Guzman and Sheldon
filed the instant motion to revoke Plaintiff’s in forma
pauperis status. Plaintiff did not file an opposition. The
motion is ready for decision pursuant to Local Rule 230(1).
Prison Litigation Reform Act of 1995 (PRLA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir.2011). 28 U.S.C. § 1915(g) provides
that “[I]n no event shall a prisoner bring a civil
action ... under this section if the prisoner has, on three
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.”
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005),
the Ninth Circuit explained, “[t]he PLRA does not
define the terms ‘frivolous, ’ or
‘malicious, ’ nor does it define dismissals for
failure to ‘state a claim upon which relief could be
granted’... We have held that the phrase ‘fails
to state a claim on which relief may be granted, ’ as
used elsewhere in § 1915, ‘parallels the language
of Federal Rule of Civil Procedure 12(b)(6).” In
defining the terms frivolous and malicious, the
Andrews court held, “[W]e look to their
‘ordinary, contemporary, common meaning.’...
Thus, a case is frivolous if it is ‘of little weight or
importance: having no basis in law or fact’... A case
is malicious if it was filed with the ‘intention or
desire to harm another’”. Andrews, 398
F.3d at 1121 (internal quotations and citations omitted). To
determine whether a dismissal qualifies as a strike, a
“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) (citing
King, 398 F.3d at 1121), cert. denied, 135 S.Ct. 57
seeking revocation of Plaintiff’s in forma pauperis
status, Defendants bear the burden of establishing that
Plaintiff has three or more strikes within the meaning of
section 1915(g), which requires the submission of evidence
sufficient to demonstrate at least three prior qualifying
dismissals. Andrews, 398 F.3d at 1120.
Defendants meet their initial burden, the burden shifts to
Plaintiff to explain why a prior dismissal should not count
as a strike. King, 398 F.3d at 1120. If Plaintiff
fails to meet that burden, his in forma pauperis status
should be revoked under § 1915(g). King, 398
F.3d at 1120.
argue that Plaintiff’s in forma pauperis status should
be revoked because, at the time this action was filed,
Plaintiff had the following strikes:
Dawson v. Reyes, No. 2:12-cv-01134 DAD (E.D.
case was dismissed on July 5, 2012, for failure to state a
claim. By its plain language, this dismissal counts as a
strike. King, 398 F.3d at 1120.
Dawson v. Sacramento County Jail, No.
2:12-cv-00963-JAM-GGH (E.D. Cal.)
7, 2012, the Court screened Plaintiff’s complaint and
dismissed it with leave to amend for his failure to identify
any named defendants and for failing to state a
“colorable claim.” ECF No. 15-1, at 15. Plaintiff
was ordered to file an amended complaint within twenty-eight
days. After Plaintiff failed to file an amended complaint,
the Court issued Findings and Recommendations on August 27,
2012, recommending that the action be dismissed without
prejudice because mail had been returned to the Court and he
failed to update ...