Michael J Hicks v. Matthew Kate

Filing 6

ORDER TO SHOW CAUSE by Magistrate Judge Fernando M. Olguin. If plaintiff objects to dismissal of his Complaint under § 1915(g), he shall file a response to this Order to Show Cause NO LATER THAN APRIL 20, 2012. **See Order for details.** (ch)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 9 MICHAEL HICKS, 10 11 12 13 Plaintiff, v. MATTHEW CATE, Defendant. 14 ) ) ) ) ) ) ) ) ) ) NO. CV 12-2677 UA (FMO) ORDER TO SHOW CAUSE 15 “‘Plaintiffs normally must pay $350 to file a civil complaint in federal district court, but 28 16 U.S.C. § 1915(a)(1) allows the district court to waive the fee, for most individuals unable to afford 17 it, by granting [in forma pauperis] IFP status.’” Moore v. Maricopa County Sheriff’s Office, 657 18 F.3d 890, 892 (9th Cir. 2011) (citation omitted). However, a state or federal inmate is prohibited 19 from “bring[ing] a civil action or appeal” IFP if the inmate: 20 has, on 3 or more prior occasions, while incarcerated or detained in any facility, 21 brought an action or appeal in a court of the United States that was dismissed on 22 the grounds that it is frivolous, malicious, or fails to state a claim upon which 23 relief may be granted, unless the prisoner is under imminent danger of serious 24 physical injury. 25 28 U.S.C. § 1915(g) (emphasis added). “This subdivision is commonly known as the ‘three strikes’ 26 provision. ‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which 27 were dismissed ‘on the ground that [they were] frivolous, malicious, or fail[] to state a claim[.]’” 28 Andrews v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir. 2005). 1 Here, it appears plaintiff, who does not allege he is “under imminent danger of serious 2 physical injury,” 28 U.S.C. § 1915(g), has already accumulated three or more “strikes” under § 3 1915(g), see Hicks v. Family Healthcare, et al., United States District Court for the Central District 4 of California Case No. CV 08-5978 UA (FMO) (denying IFP request when complaint was 5 frivolous); Hicks v. Cate, United States District Court for the Eastern District of California Case No. 6 08-0511 SPK (dismissing complaint that had “no basis in law or fact”); Hicks v. Berkson, United 7 States District Court for the Eastern District of California Case No. CV 02-5905 AWI (SMS) 8 (dismissing complaint for failure to state a claim upon which relief may be granted); see also Hicks 9 v. Virga, United States District Court for the Eastern District of California Case No. 11-0405 MCE 10 (CMK) (dismissing action without prejudice under § 1915(g) and noting that plaintiff’s “three 11 strikes” include “Hicks v. Ortiz, E.D. Cal. No. 01-CV-5728; Hicks v. Marshall, N.D. Cal. no. 93-CV- 12 4272; and Hicks v. Lewis, N.D. Cal. No. 94-CV-2103"); O’Neal v. Price, 531 F.3d 1146, 1153 (9th 13 Cir. 2008) (“[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds that 14 [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such 15 a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal 16 as denial of the prisoner’s application to file the action without prepayment of the full filing fee.”); 17 Andrews, 398 F.3d at 1121 (“[A] case is frivolous if it . . . ‘[has] no basis in law or fact.’”) (citations 18 omitted). Accordingly, plaintiff is Ordered to Show Cause in writing why this action should not be 19 dismissed pursuant to § 1915(g). See Andrews, 398 F.3d at 1120 (“[O]nce a prisoner has been 20 placed on notice of the potential disqualification under § 1915(g) by either the district court or the 21 defendant, the prisoner bears the ultimate burden of persuading the court that § 1915(g) does not 22 preclude IFP status.”) . 23 If plaintiff objects to dismissal of his Complaint under § 1915(g), he shall file a response to 24 this Order to Show Cause no later than April 20, 2012. 25 Dated this 30th day of March, 2012. /s/ Fernando M. Olguin United States Magistrate Judge 26 27 28 2

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