(PC) Green v. Jackson et al

Filing 8

ORDER Directing Plaintiff to SHOW CAUSE why his Application to Proceed In Forma Pauperis Should not be Denied in Light of 28 U.S.C. 1915(g); Plaintiff's Showing of Cause or, in the Alternative, Payment of the Filing Fee in Full due July 5, 2024 signed by Magistrate Judge Gary S. Austin on 06/4/2024.(Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JARVON D. GREEN,

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Plaintiff,
v.
D. JACKSON, et al.,
Defendants.

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No. 24-cv-00576 GSA (PC)
ORDER DIRECTING PLAINTIFF TO SHOW
CAUSE WHY HIS APPLICATION TO
PROCEED IN FORMA PAUPERIS SHOULD
NOT BE DENIED IN LIGHT OF 28 U.S.C. §
1915(g),
PLAINTIFF’S SHOWING OF CAUSE OR, IN
THE ALTERNATIVE, PAYMENT OF THE
FILING FEE IN FULL DUE JULY 5, 2024

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief

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under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to

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28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 15, 2024, the Court ordered Plaintiff to file an application to proceed in forma

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pauperis, or, in the alternative to pay the filing fee. ECF No. 4. On May 31, 2024, Plaintiff’s

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application to proceed in forma pauperis was docketed. ECF No. 5. Shortly thereafter, Plaintiff’s

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prison trust fund account statement was also filed. ECF No. 7.

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For the reasons stated below, consistent with 28 U.S.C. § 1915(g), Plaintiff will be

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ordered to show cause why his application to proceed in forma pauperis should not be denied and

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instead he be required to pay the filing fee in full prior to proceeding any further with this action.

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He will be given thirty days to do so.
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I.

IN FORMA PAUPERIS STATUS

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“[In forma pauperis] status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d

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1176, 1180 (9th Cir. 1999) (brackets added); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)

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(“To proceed in forma pauperis is a privilege not a right.”). An inmate’s in forma pauperis status

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may be revoked at any time if the court, either sua sponte or on a motion, determines that the

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status was improvidently granted. Keeton v. Marshall, No. CV 17-01213 FMO (KS), 2018 WL

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4381543, at *6 (C.D. Cal. June 8, 2018) (citation omitted) (italics added); Owens v. Matthews,

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No. CV 16-07755 JFW (KS), 2017 WL 603183, at *2 (C.D. Cal. Jan. 6, 2017) (stating same).

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The grant or refusal of permission to proceed in forma pauperis is left to the sound discretion of

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the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller v. Dickson, 314 F.2d

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598 (9th Cir. 1963)). The latitude given a district court in such matters is especially broad in civil

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actions by prisoners against their wardens and other officials. Smart, 347 F.2d at 116 (footnote

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citation omitted); Shobe v. People of State of California, 362 F.2d 545, 546 (9th Cir. 1966) (citing

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Smart).

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II.

THREE STRIKES RULE: 28 U.S.C. § 1915(g)

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28 U.S.C. § 1915(g) states:

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In no event shall a prisoner bring a civil action or appeal a judgment in a civil action
or proceeding 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.

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“It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the 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) (brackets added) (emphasis added) (citation omitted). “[Section]
1915(g) should be used to deny a prisoner’s in forma pauperis 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

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claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added). “[W]hen a

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district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is

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frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint

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is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of

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the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v.

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Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts

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as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it

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fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an

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amended complaint” regardless of whether the case was dismissed with or without prejudice.

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Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017).

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An inmate who has accrued three strikes is precluded from proceeding in forma pauperis

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unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy

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the exception, the plaintiff must have alleged facts that demonstrate that he was “under imminent

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danger of serious physical injury” at the time of filing the complaint. Andrews v. Cervantes, 493

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F.3d 1047, 1053 (9th Cir. 2007) (“[I]t is the circumstances at the time of the filing of the

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complaint that matters for purposes of the ‘imminent danger’ exception to § 1915(g).”); see also

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Abdul-Akbar v. McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d

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1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v.

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O’Guin, 144 F.3d 883, 885 (5th Cir. 1998); Lipsey v. Allison, No. 1:21-cv-00912 GSA, 2021 WL

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2390424, at *3 (E.D. Cal. June 11, 2021) (“The availability of the imminent danger exception

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turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or

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later time.”).

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The danger faced by a prisoner at the time of filing must be imminent or ongoing. See,

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e.g., Medberry, 185 F.3d at 1193 (finding plaintiff was not in either imminent or ongoing danger

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and denying him ability to proceed in forma pauperis as three strikes litigant). “Imminent danger

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of serious physical injury must be a real and present threat, not merely speculative or

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hypothetical.” Lipsey, 2012 WL 2390424, at *3; Blackman v. Mjening, No. 1:16-cv-01421 LJO

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GSA, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). In addition, “the imminent danger
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exception to the [Prison Litigation Reform Act’s] three strikes provision requires a nexus between

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the alleged imminent danger and the violations of law alleged in the complaint.” Ray v. Lara, 31

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F.4th 692, 695 (9th Cir. 2022) (brackets added).

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III.

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A review of court records reveals that at least three cases brought by Plaintiff prior to him

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bringing the instant matter to this Court qualify as strikes under Section 1915(g). The Court takes

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judicial notice of the following lawsuits1 that were dismissed on grounds listed in Section 1915(g)

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prior to him bringing the instant matter:
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PLAINTIFF'S PRIOR STRIKES

Green v. Harrod, No. 2:22-cv-01285 WBS CKD (E.D. Cal. May 15, 2023) (dismissed
for failure to amend after failure to state a claim determination);2

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Green v. Smith, No. 2:22-cv-01472 KJM KJN (E.D. Cal. Dec. 16, 2022) (dismissed
for failure to exhaust administrative remedies),3 and

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The court “may take notice of proceedings in other courts, both within and without the federal
judicial system, if those proceedings have a direct relation to matters at issue.” United States ex
rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court
may take judicial notice of facts that are capable of accurate determination by sources whose
accuracy cannot reasonably be questioned).
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The dismissal of a case with leave to amend, followed by a plaintiff’s failure to amend
constitutes a strike under Section 1915(g). See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir.
2017).
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Despite the fact that failure to exhaust administrative remedies is an affirmative defense, a
complaint may be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) when an
affirmative defense appears on its face. See Harris v. Harris, 935 F.3d 670, 676 (9th Cir. 2019)
(“[T]here are rare cases where an affirmative defense . . . may be so clear on the face of the
complaint that dismissal may qualify as a strike for failure to state a claim.”); El-Shaddai v.
Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) (citations omitted) (stating when failure to exhaust
is clear on face of complaint, it is sufficient to dismiss under 12(b)(6)); Albino v. Baca, 747 F.3d
1162, 1169 (9th Cir. 2014) (citations omitted) (“But in those rare cases where a failure to exhaust
is clear from the face of the complaint, a defendant may successfully move to dismiss under Rule
12(b)(6) for failure to state a claim.”).
In Green v. Smith (“Smith”), based on the content of the complaint, the Smith Court
determined that Plaintiff Green had not completed the administrative grievance process prior to
filing the case. See Smith, ECF Nos. 10-12 (findings and recommendations; judgment, and order,
respectively). As a result, the matter was dismissed for failure to exhaust administrative
remedies. See Smith, ECF Nos. 11-12 (judgment, order). Consistent with the findings in ElShaddai, Albino, and Harris, this dismissal for failure to exhaust counts as a strike for failure to
state a claim.
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Green v. Phillips, No. 1:23-cv-01032 JLT BAM (E.D. Cal. Dec. 19, 2023) (dismissed
for failure to state a claim; failure to obey court order, and failure to prosecute).

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IV. DISCUSSION

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A. Matter Brought After Three Strikes Accrued

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Plaintiff brought the instant matter to this Court on May 31, 2024.4 See ECF No. 1 at 6

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(signature page with date); ECF No. 5 (application to proceed in forma pauperis). At that time,

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all three of the above-referenced cases had been dismissed on grounds stated in Section 1915(g).

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As a result, as a three strikes litigant, Plaintiff is required to pay the filing fee in full, unless at the

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time he brought he instant action before this Court, he made an adequate showing that he was in

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imminent danger of serious physical harm. See 28 U.S.C. § 1915(g) (serious physical harm

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requirement).

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B. No Imminent Danger Alleged in Instant Case

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A review of the complaint indicates that Plaintiff does not allege in it that he is imminent

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danger of serious physical harm. See ECF No. 1 at 1-12 (complaint form with additional

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supporting pages). Therefore, Section 1915(g) precludes him from proceeding with this case

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without first paying the filing fees for it in full. See 28 U.S.C. § 1915(g). Prior to ordering him

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to do so however, Plaintiff will first be directed to show cause why he was not a three strikes

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litigant within the meaning of Section 1915(g) at the time that he brought the instant matter

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before this Court. As an alternative to filing the showing of cause Plaintiff may pay the filing fee

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in full.

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V.

CONCLUSION

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Shortly after Plaintiff filed the instant complaint, he was ordered either to submit an

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application to proceed in forma pauperis or to pay the filing fee in full. See ECF No. 4.

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However, because a review of the above referenced cases that Plaintiff has previously filed in

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federal court indicate that he has accumulated three strikes within the meaning of 28 U.S.C. §

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“[A] plaintiff has ‘brought’ an action for the purposes of § 1915(g) when he submits a
complaint and request to proceed in forma pauperis to the court.” O’Neal, 531 F.3d at 1152.
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1915(g), and because it appears from a reading of the instant complaint that Plaintiff makes no

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claim that he was in imminent danger of serious physical harm when he filed it, he is precluded

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by statute from proceeding any further in this action unless and until he first pays the filing fee in

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full. However, prior to ordering him to do so Plaintiff will first be directed to show cause why he

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was not a three strikes litigant within the meaning of Section 1915(g) at the time that he brought

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this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff is ordered to SHOW CAUSE why, consistent 28 U.S.C. § 1915(g), he should

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not be ordered to pay the filing fee in full prior to proceeding any further in this action;
2. Within thirty days from the date of this order – by July 5, 2024, – Plaintiff shall file
his showing of cause, and
3. The showing of cause must address why at least one of the following previously
adjudicated cases is not a strike within the meaning of 28 U.S.C. § 1915(g):

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Green v. Harrod, No. 2:22-cv-01285 WBS CKD (E.D. Cal. May 15, 2023);

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Green v. Smith, No. 2:22-cv-01472 KJM KJN (E.D. Cal. Dec. 16, 2022), and

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Green v. Phillips, No. 1:23-cv-01032 JLT BAM (E.D. Cal. Dec. 19, 2023), and

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4. As an alternative to filing the showing of cause, Plaintiff may pay the filing fee in full
within the same thirty-day period.
Plaintiff is cautioned that failure to adhere to the instructions in this order may

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result in recommendations that this matter be dismissed for failure to obey court orders.

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Plaintiff is further cautioned that absent exigent circumstances, requests for extensions of

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time to file the showing of cause will not be granted.

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IT IS SO ORDERED.
Dated:

June 4, 2024

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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