Davis v. Kelso et al

Filing 15

ORDER to SHOW CAUSE Regarding Three Strikes signed by Magistrate Judge Gerald B. Cohn on 4/21/2011. Show Cause Response due by 5/25/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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CHARLES T. DAVIS,

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CASE NO: 1:10-cv-01184-LJO-GBC (PC)

Plaintiff,

ORDER TO SHOW CAUSE REGARDING
THREE STRIKES

v.
(Doc. 1)

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CLARK J. KELSO, et al.,

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Defendants.
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Charles Davis (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff filed his complaint on July 1, 2010.
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A review of the record of actions and appeals filed by Plaintiff in the United States District Court
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and in the Ninth Circuit reveals that Plaintiff filed three or more actions or appeals that were
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dismissed as frivolous, malicious or for failing to state a claim upon which relief may be granted.
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Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis.
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Section 1915(g) provides that:
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[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner
has, on 3 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.
28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions and appeals count as strikes under

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“This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or appeals,
brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious,
or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g), a prisoner with three strikes

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section 1915(g) requires the Court to conduct a “careful examination of the order dismissing an

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action, and other relevant information,” to determine if, in fact, “the action was dismissed because

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it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th

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Cir. 2005).

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The Court takes judicial notice that Plaintiff has two prior actions dismissed for failure to

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state a claim for which relief can be granted under section 1983. Those cases are: Davis v. Swartz,

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et al., 2:01-cv-00827-WBS-PAN (PC) (E.D. Cal.) (dismissed April 22, 2002, for failure to state a

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claim) and Davis v. George, 1:10-cv-00210-OWW-GSA (PC) (E.D. Cal.) (dismissed February 18,

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2010, for failure to state a claim).

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Generally, a dismissal for failure to prosecute does not fall within the plain language of

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Section 1915(g). However, a court is to carefully evaluate the substance of the dismissal and where

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the merits of the claim have been determined to be frivolous or malicious, it counts as a strike. See

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Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005); see also O'Neal v. Price, 531 F.3d 1146,

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1152-53 (9th Cir. 2008) (interpreting the term “dismissed” under section 1915(g) to include when

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a trial court denies request to file an action without prepayment of the filing fee on the ground that

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complaint if frivolous and then subsequently terminates the complaint). Moreover, section

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1915(e)(2) requires appellate courts to dismiss all appeals that are frivolous, malicious or fails to

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state a claim on which relief may be granted. 28 U.S.C. 1915(e)(2); see also O'Neal v. Price, 531

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F.3d 1146, 1153 (9th Cir. 2008); Thompson v. Drug Enforcement Admin., 492 F.3d 428, 436 (D.C.

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Cir. 2007).

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The Court takes judicial notice of appellate cases: Davis v. Alameida, et al., No. 05-17055

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(9th Cir. dismissed March 2, 2006) and Davis v. Swartz, et al., No. 02-15969 (9th Cir. dismissed July

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19, 2009). The Court finds that Davis v. Alameida, counts as a strike under Section 1915(g). In the

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underlying case, the magistrate judge determined that “[t]he complaint . . . [wa]s so prolix and

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obscure that the court [could]not reasonably discharge its responsibility under § 1915A(a) until

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plaintiff first satisfie[d] his own duty to comply with the pleading requirements set forth in Rule 8

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or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d 1113, 1116 n.1(9th Cir. 2005).

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of the Federal Rules of Civil Procedure.” Davis v. Alameida, et al., 2:04-cv-00886-MCE-PAN (Doc.

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18, March 9, 2005). After the Court instructed Plaintiff that the complaint did not comply with Fed.

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R. Civ. P. 8(a) and explained how to correct the deficiencies in the complaint, Plaintiff informed the

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Court that he did not intend to file an amended complaint.

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2:04-cv-00886-MCE-PAN. In an order dated January, 26, 2006, the appellate court in Alameida

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denied Plaintiff’s motion to proceed in forma pauperis, agreeing with the District Court that the

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appeal was not made in good faith, hence, frivolous. See Davis v. Alameida, et al., No. 05-17055.

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Plaintiff did not pay the required filing fee and on March 2, 2006, Plaintiff’s appeal was dismissed

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for failure to prosecute. Davis v. Alameida, et al., No. 05-17055.

Davis v. Alameida, et al.,

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The appellate case in Davis v. Swartz, et al., No. 02-15969 (9th Cir. dismissed July 19, 2002)

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is similar to Alameida. In the underlying trial case, after Plaintiff’s complaint was dismissed with

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leave to amend and the Court explained what was required to state a cognizable claim, Plaintiff

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submitted an objection arguing why the original complaint stated a claim. Davis v. Swartz, et al.,

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2:01-cv-00827-WBS-PAN (PC) (Doc.19, Findings and Recommendations at 3). Plaintiff then

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submitted an amended complaint which also failed to state a claim. Davis v. Swartz, et al.,

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2:01-cv-00827-WBS-PAN (PC) (Doc.19). In the Findings and Recommendations, the Magistrate

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Judge also noted that the state court judgment that Plaintiff attached demonstrated “his inability or

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unwillingness to cure the defects pointed out to him in the state court’s . . . order.” Davis v. Swartz,

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et al., 2:01-cv-00827-WBS-PAN (PC) (Doc.19 at 4). After the District Court dismissed the action

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for failure to state a claim, the Ninth Circuit, in its order dated June 14, 2002, denied Plaintiff’s

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motion to proceed in forma pauperis, conforming with finding the appeal frivolous/failing to state

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a claim under 28 U.S.C. § 1915(e)(2). Since Plaintiff failed to timely submit payment for filing fee

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for his frivolous appeal, on July 19, 2002, the Ninth Circuit dismissed the case for failure to

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prosecute. Davis v. Swartz, et al., No. 02-15969.

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It appears to the Court that Plaintiff has three or more strikes and became subject to section

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1915(g) on March 2, 2006, or at the latest, on February 18, 2010. Therefore Plaintiff would be

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precluded from proceeding in forma pauperis unless he is, at the time the complaint is filed, under

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imminent danger of serious physical injury. Because Plaintiff has on three prior occasions brought
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civil actions and appeals that have been dismissed as frivolous or for failure to state a claim, the

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Court HEREBY ORDERS:

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Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date of service of this order

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why the abovementioned actions and appeals do not count as “strikes” under 28 U.S.C. §

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1915(g) and why the Court should not revoke Plaintiff’s in forma pauperis status pursuant

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to 28 U.S.C. § 1915(g) and why the action should not be dismissed without prejudice to

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allow Plaintiff to refile with the submission of the $350.00 filing fee.

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IT IS SO ORDERED.
Dated:
0jh02o

April 21, 2011
UNITED STATES MAGISTRATE JUDGE

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