Hollis v. Reisenhoover et al

Filing 11

ORDER TO SHOW CAUSE Show Cause Response due by 5/10/2017. Signed by Judge Nandor J. Vadas on 4/17/2017. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 4/19/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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MARVIN GLENN HOLLIS,

Case No. 17-cv-0326-NJV (PR)

Plaintiff,
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ORDER TO SHOW CAUSE

v.
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NURSE REISENHOOVER, et. al.,

United States District Court
Northern District of California

Defendants.
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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 1983.

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Plaintiff has also filed an application to proceed in forma pauperis. Plaintiff alleges that he was

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denied medical treatment at Pelican Bay State Prison. He is now incarcerated at California State

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Prison Los Angeles County.

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The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996, provides

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that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 “if

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the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility,

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brought an action or appeal in a court of the United States that was dismissed on the grounds that

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it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The phrase

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“fails to state a claim on which relief may be granted,” as used in § 1915(g), “parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).” Andrews v. King, 398 F.3d 1113, 1121

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(9th Cir. 2005) (internal quotation marks omitted). A case is “frivolous” within the meaning of §

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1915(g) if “it is of little weight or importance: having no basis in law or fact.” Id. (internal

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quotation marks omitted). Further, because § 1915(g) is a procedural rule that does not raise

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retroactivity concerns, cases dismissed before the effective date of § 1915(g) may be counted as

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qualifying dismissals or “strikes.” See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).

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A court may count as strikes dismissals of district court cases as well as dismissals of appeals. See

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Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does not get three frivolous

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claims and three frivolous appeals before being barred by § 1915(g)). A dismissal under §

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1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915(g), but he

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still may pursue his claim if he pays the full filing fee at the outset of the action.

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It appears that plaintiff has at least four strikes pursuant to § 1915(g). Two cases were
dismissed for failure to state a claim: Hollis v. Mazon-Alec, No. 03-6842 RFC DLB (E.D. Cal.)

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Docket Nos. 23, 24; Hollis v. Villanueus, No. 07-4538 TEH (E.D. Cal.) Docket No. 11. These

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United States District Court
Northern District of California

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cases qualify as strikes.

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Plaintiff appealed Hollis v. Villanueus to the Ninth Circuit. Hollis v. Villanueu, 09-15523.

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The district court found plaintiff’s appeal was “frivolous and not taken in good faith. See 28

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U.S.C § 1915(a)(3).” Hollis v. Villanueus, No. 07-4538 TEH (E.D. Cal.) Docket No. 18. The

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Ninth Circuit denied plaintiff’s in forma pauperis application and ordered him to pay the full filing

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fee and show cause why the district court decision should not be summarily affirmed. Hollis v.

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Villanueu, 09-15523 Docket No. 7. Plaintiff ultimately failed to pay the filing fee and the appeal

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was dismissed for failure to prosecute. Hollis v. Villanueu, 09-15523 Docket No. 9.

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Generally, a dismissal for failure to prosecute does not count as a strike. See Bulter v.

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Department of Justice, 492 F.3d 440, 443 (D.C. Cir. 2007) (dismissal for failure to prosecute made

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without regard to merits of claim does not constitute a strike); but see Ruff v. Ramirez, 2007 WL

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4208286 at *5 (S.D. Cal. 2007) (dismissal for failure to prosecute by itself is not a strike, however

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such dismissal qualifies as a strike when it is based on plaintiff’s failure to file an amended

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complaint after court dismissed original complaint as frivolous and provided plaintiff leave to

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amend). Because the district court specifically found that plaintiff’s appeal was frivolous, this

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court finds the appeal to be a strike under § 1915(g).

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In Hollis v. Evans, No. 07-5389 TEH (E.D. Cal.), plaintiff filed a habeas petition, but the

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district court found the petition was based on a civil rights claim. Docket No. 4. 1 The court

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dismissed the case without prejudice for plaintiff to file a civil rights action and also informed

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plaintiff that the fee for a civil rights action would be $350 if he chose to proceed. Id. The district

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court case is not a strike under § 1915(g). However, plaintiff appealed the dismissal to the Ninth

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Circuit. Hollis v. Evan, 08-15037 (9th Cir.) The district court found plaintiff’s appeal was

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“frivolous and not taken in good faith. See 28 U.S.C § 1915(a)(3).” Hollis v. Evans, No. 07-5389

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TEH (E.D. Cal.) Docket No. 10. The appeal was dismissed for failure to prosecute. Hollis v.

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Evan, 08-15037 (9th Cir.) Docket No. 11.
The Ninth Circuit has held that dismissed habeas petitions do not qualify as strikes.

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Andrews, 398 F.3d at 1122. However, the Circuit noted:

United States District Court
Northern District of California

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We recognize, however, that some habeas petitions may be little
more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions
so as to avoid the penalties imposed by 28 U.S.C. § 1915(g). In
such cases, the district court may determine that the dismissal of the
habeas petition does in fact count as a strike for purposes of §
1915(g).

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Id. at 1123, n. 12.
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In this case, the district court specifically found that the claims were not properly brought
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in a habeas petition and should be brought in a civil rights complaint. Rather than filing a civil
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rights action, plaintiff appealed, and the appeal was specifically found to be frivolous. Therefore,
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this court find the appeal to be a strike under § 1915(g).
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Another court found the first three cases cited above to be strikes pursuant to § 1915(g)
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and denied plaintiff’s request proceed in forma pauperis. Hollis v. Bal, No. 13-2145 EFB (E.D.
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Cal.) Docket No. 6. Plaintiff appealed the denial of his in forma pauperis request to the Ninth
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Circuit. In re Marvin Hollis, 11-80161 (9th Cir.). The Ninth Circuit dismissed the appeal, finding
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that it was so insubstantial as to not warrant further review. Id. Docket No. 9.
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Plaintiff shall show cause within twenty-one (21) days, why this case should not be
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deemed three strikes barred and the application to proceed in forma pauperis denied. Failure to
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The petition involved the cancellation of an administrative appeal resulting in the grievance not
being appealable to the highest level of administrative review.
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reply will result in dismissal.
IT IS SO ORDERED.
Dated: April 19, 2017
________________________
NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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