Elmore v. Griffith et al

Filing 9

ORDER to SHOW CAUSE Regarding Three Strikes Pursuant to 28 U.S.C. §1915(g), signed by Magistrate Judge Gerald B. Cohn on 9/24/12: Plaintiff SHALL SHOW CAUSE within thirty (30) days from the date of service of this order. (Hellings, J)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

TONIE ELMORE,

10

Plaintiff,

11
12

CASE NO: 1:12-cv-00208-GBC (PC)
ORDER TO SHOW CAUSE REGARDING
THREE STRIKES PURSUANT TO 28 U.S.C. §
1915(g)

v.
L. GRIFFITH, et al.,

13
Defendants.
14

/

15
I.

Procedural History

16
Tonie Elmore (“Plaintiff”), is a state prisoner proceeding pro se and in forma pauperis
17
(“IFP”). Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 on February 14, 2012.
18
Doc.1. On March 23, 2012, the Court granted Plaintiff’s motion to proceed in forma pauperis. Doc.
19
7.
20
II.

Three Strikes

21
A review of the record of actions filed by Plaintiff in the United States District Court reveals
22
that Plaintiff filed three or more actions that were dismissed as frivolous, malicious or for failing to
23
state a claim upon which relief may be granted. Section 1915 of Title 28 of the United States Code
24
governs proceedings in forma pauperis. Section 1915(g) provides that:
25
26
27

[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
1

1

28 U.S.C. § 1915(g).1 “In some instances, the district court docket records may be sufficient to show

2
that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a
3
strike.” Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). However, where the docket records
4
do not reflect the basis for the dismissal, the Court should conduct a “careful examination of the
5
order dismissing an action, and other relevant information,” to determine if, in fact, “the action was
6
dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d
7
1113, 1121 (9th Cir. 2005).
8
After careful review, the Court finds the following cases count as strikes for being malicious
9
and frivolous: 1) Elmore v. Lamarque, 3:00-cv-02269-CRB at Doc. 3, 2000 WL 1677958 (N.D. Cal.
10
November 2, 2000) (failure to state a claim); 2) Elmore v. Salinas Valley State Prison State Prison,
11
3:00-cv-02929-CRB at Doc. 2 (N.D. Cal. August 25, 2000) (failure to state a claim); and 3) Elmore
12
v. Clark, et al., No. 3:00-cv-01275-CRB at Doc. 3 (N.D. Cal. August 25, 2011) (failure to state a
13
claim). The Court notes that courts in Elmore v. Castro, et al., 1:11-cv-02143-GSA at Doc. 11
14
(August 23, 2012); Elmore v. Reitz, No. 3:02-cv-03986, 2002 WL 2022758 (August 29, 2002) and
15
Elmore v. Brandon, et al., No. 3:00-cv-2361, 2000 U.S. Dist. Lexis 17686 (November 13, 2000)
16
have previously determined that Plaintiff has accumulated three strikes.
17
Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff
18
filed this action on February 14, 2012. Additionally, the Court finds that Plaintiff’s Eighth
19
Amendment medical claim stemming from pain in the head of his penis and inability to ejaculate
20
after self stimulation does not fall within the imminent danger exception. See Andrews v. Cervantes,
21
493 F.3d 1047, 1056-57 (9th Cir. 2007).
22
///
23
///
24
///
25
26
27
28

1

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

2

1

III. Conclusion

2

Because it appears that the Plaintiff has on three or more prior occasions brought civil actions

3

that have been dismissed as frivolous or for failure to state a claim, the Court HEREBY ORDERS:

4

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

5

abovementioned actions do not count as “strikes” under 28 U.S.C. § 1915(g) and why Plaintiff’s in

6

forma pauperis status should not be revoked to allow Plaintiff to submit the entire balance of the

7

$350.00 filing fee.

8
9

IT IS SO ORDERED.

10
11

Dated:
0jh02o

September 24, 2012
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3