Morris v. Mini et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/11/2013 RECOMMENDING that plaintiff's 8 motion to proceed ifp be denied, plaintiff be barred from proceeding ifp in this action uner the three strikes provision of 28 U.S.C. § 1915(g), and this case be dismissed without prejudice. Referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON MORRIS,

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No. 2:12-CV-1774-TLN-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

V. MINI, et al.

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. On October 4, 2012, the undersigned order plaintiff to submit a complete

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application for leave to proceed in forma pauperis, or pay the appropriate filing fee. If plaintiff

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chose to file an application to proceed in forma pauperis, he was cautioned that it appeared he

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would be barred from proceeding in forma pauperis and he would need to explain how he meets

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the immanent danger standard pursuant to 28 U.S.C. § 1915(g). Plaintiff’s application (Doc. 8)

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is now pending before the court, but he has not explained how he would meet the imminent

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danger exemption, as discussed below.

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The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as
follows:
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In no event shall a prisoner bring a civil action . . . under this
section if the prisoner was, 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

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

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

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count 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.

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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.”1

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It is unclear how the appellant would have been able to “resume” the appeal upon
pre-payment of the filing fee because appellate filing fees are paid in the district court when the
notice of appeal is filed. Had the appellant filed a new notice of appeal with the appropriate
filing fee, any such notice of appeal would have been untimely in that it would not have been
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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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This court has found plaintiff ineligible to proceed in forma pauperis, as have
other district courts. See e.g., Morris v. Green, Case No. 2:12-cv-2448-JAM-CKD, Morris v.
Woodford, No. C07-4198 MJJ (PR), 2008 WL 906560 (N.D. Cal. Apr. 2, 2008).
In this action, plaintiff complains about falsified documents used in a rules

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violation report, as well as a classification committee decision as to whether to return plaintiff to

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the yard or house him in the secured housing unit. He does not seek injunctive relief nor has he

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suggested he is under any imminent danger of serious physical injury, even after the court

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suggested that such an explanation was required.

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Based on the foregoing, the undersigned recommends that plaintiff’s motion to

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proceed in forma pauperis (Doc. 8) be denied, plaintiff be barred from proceeding in forma

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pauperis in this action under the three strikes provision of 28 U.S.C. § 1915(g), and this case be

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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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filed within 30 days of the final judgment being appealed. The Ninth Circuit did not address this
problem.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: April 11, 2013
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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