Harris v. Deloney, et al

Filing 9

AMENDED FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 09/12/11 recommending that plaintiff's motion for leave to proceed in forma pauperis 7 be denied; and this action be dismissed without prejudice. MOTION to PROCEED IN FORMA PAUPERIS 7 referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARVIN HARRIS,
Plaintiff,

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No. CIV S-11-2175-KJM-CMK-P

AMENDED FINDINGS AND RECOMMENDATIONS

vs.
M. DELONEY, et al.,
Defendants.

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/

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to proceed in forma

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pauperis (Doc. 7), which the court recommends be denied.
The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as

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follows:
In 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 . . ., brought an action . . . in a court of the United
States that was dismissed on the ground 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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Id.
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Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the

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reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma

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pauperis unless the imminent danger exception applies. Dismissed habeas petitions do not count

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as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005).

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Where, however, a dismissed habeas action was merely a disguised civil rights action, the district

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court may conclude that it counts as a “strike.” See id. at n.12.
In this case, plaintiff has three or more “strikes.” As outlined in the court’s order

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in Harris v. Brooks, E. Dist. Cal. no. CIV-S-09-1818-DAD-P, at least the following three cases

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were dismissed on the grounds that they were frivolous or failed to state a claim upon which

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relief could be granted: (1) Harris v. Edmonds, no. CIV-F-5857-OWW-LJO; (2) Harris v.

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Edmonds, no. CIV-F-00-7160-REC-SMS; and (3) Harris v. Pliler, no. CIV-S-01-1125-WBS-

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DAD. Because plaintiff has three or more “strikes,” his motion for in forma pauperis status must

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be denied.

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When in forma pauperis status is denied or revoked under § 1915(g), the proper

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course of action is to dismiss the action without prejudice to re-filing the action upon pre-

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payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth Circuit

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reviewed a district court’s screening stage dismissal of a prisoner civil rights action after finding

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under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128 F.3d

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1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than simply

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providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the

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plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the

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Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded

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that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes”

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provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant

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an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated

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that the appellant “may resume this appeal upon prepaying the filing fee.”
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This conclusion is consistent with the conclusions reached in at least three other

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circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status

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under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically

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held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because

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“[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original).

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The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383

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(5th Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002).

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Based on the foregoing, the undersigned recommends that:

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Plaintiff’s motion for leave to proceed in forma pauperis (Doc. 7) be

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This action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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denied; and

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DATED: September 12, 2011
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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