Manago v. Cate et al

Filing 6

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/30/12 DENYING 2 Motion to Proceed IFP. Plaintiff shall pay the filing fee in full within 28 days. (Dillon, 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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STEWART MANAGO,

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Plaintiff,

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No. CIV S-12-0966 GGH P

vs.

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MATTHEW CATE, et al.,

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Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C.

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§ 1983 and has filed an application to proceed in forma pauperis. This case is before the

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undersigned pursuant to plaintiff’s consent. Doc. 5.

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28 U.S.C. § 1915 permits any court of the United States to authorize the

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commencement and prosecution of any suit without prepayment of fees by a person who submits

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an affidavit indicating that the person is unable to pay such fees. However,

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[i]n 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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28 U.S.C. § 1915(g).
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The plain language of the statute (§ 1915(g)) makes clear that a prisoner is

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precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought

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three frivolous actions and/or appeals (or any combination thereof totaling three). See

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Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). 28 U.S.C. § 1915(g) should be used to

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deny a prisoner’s in forma pauperis status only upon a determination that each action reviewed

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(as a potential strike) is carefully evaluated to determine that it was dismissed as frivolous,

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malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

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Dismissal of an appeal as frivolous after a district court dismissal on grounds that the action was

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frivolous counts as a separate strike. Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).

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However, Adepegba qualifies that insofar as affirmance only finds no error at district court level,

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affirmance should not count as separate strike.1 Id., at 387. On the other hand, when the appeal

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is frivolous on a separate ground, then the appeal dismissal is also a strike. Id. at 388. See also

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Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Moran v. Sondalle, 218 F.3d 647,

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651-52 (7th Cir. 2000) (both noting that frivolous appeals count as a strike). In a recent case,

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Silva v. Di Vittorio, 658 F.3d 1090 (9th Cir. 2011), the Ninth Circuit held that a district court

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strike was not final until an appeal had been resolved.
The court takes judicial notice of the following cases which count as strikes:2 1)

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Manago v. Myers, 3:90-cv-20256-MHP (N.D. Cal.) (dismissed October 9, 1991 for failure to

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state a claim); 2) Manago v. Marshall, 3:94-cv-01528-MHP (N.D. Cal.) (dismissed March 25,

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1998 for failure to state a claim and affirmed on appeal, 10 Fed. Appx. 540 (9th Cir. 2001)); and

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3) Manago v. Gulare, 1:99-cv-05525-REC-SMS (E.D. Cal.) (dismissed March 17, 2000, for

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It also follows that an appellate court reversal would nullify a strike. Adepegba v.
Hammons, 103 F.3d at 387.
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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman,
803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980)
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failure to state a claim).1

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Nor is the instant case subject to the exception for a plaintiff subject to “imminent

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danger of serious physical injury.” 28 U.S.C. § 1915(g). Plaintiff seeks monetary damages

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alleging that defendants retaliated against him for protected conduct. Plaintiff states that he

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reported staff for misconduct and several were fired in 2003 and 2004 and then he filed several

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inmate appeals in November and December 2009. In retaliation, plaintiff alleges he was

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validated as a gang member on December 31, 2009. Plaintiff admits that he is a gang member,

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but states he was validated for a different gang than he is in, and is therefore in danger from rival

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gang members. However, plaintiff states he was placed in the Secured Housing Unit, but is at

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risk for future danger from the rival gang members if they learn he was validated and is not in

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their gang. Moreover, plaintiff does not seek any injunctive relief such as the gang validation

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being removed, only monetary damages. As plaintiff states he is at risk for future danger and this

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occurred more than two years ago, this action fails to demonstrate imminent danger. The court

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also notes that plaintiff filed actions with very similar allegations on August 1, 2011, in Manago

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v. Gonzalez, 1:11-cv-1269-SMS (E.D. Cal.) and on March 30, 2012, in Manago v. Gonzalez,

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1:12-cv-0488-DLB (ED. Cal.).
Accordingly, IT IS HEREBY ORDERED that plaintiff’s in forma pauperis

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application (Doc. 2) is denied for the reasons set forth above and plaintiff shall pay the filing fee

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in full within 28 days. Failure to pay the filing fee will result in this case being dismissed.

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DATED: April 30, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH: AB
mana0966.ifp

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In Manago v. Gonzalez, 1:11-cv-2003-AWI-JLT (E.D. Cal), plaintiff was found to be
three strikes barred on March 12, 2012.
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