Rosenbalm v. Matteucci

Filing 4

ORDER TO SHOW CAUSE. Signed by Judge Illston on 3/21/07. (ts, COURT STAFF) (Filed on 3/21/2007)

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Rosenbalm v. Matteucci Doc. 4 Case 3:07-cv-01295-SI Document 4 Filed 03/21/2007 Page 1 of 3 1 2 3 4 5 6 7 8 9 In Re. 10 VINCENT ROSENBALM, 11 For the Northern District of California UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA United United States District Court Plaintiff. 12 13 14 15 / No. C 06-7801 SI (pr) No. C 06-7802 SI (pr) No. C 07-0316 SI (pr) No. C 07-0606 SI (pr) No. C 07-0776 SI (pr) No. C 07-1295 SI (pr) No. C 07-1555 SI (pr) ORDER TO SHOW CAUSE RE. CONTEMPLATED DISMISSAL Vincent Rosenbalm filed seven civil actions and two habeas corpus petitions in the last 16 several months. He was in the Mendocino County Jail until February 2007, and has been in the 17 Napa State Hospital since then. This order concerns only his civil rights complaints and petition 18 for writ of mandate; it does not concern his habeas petitions. Rosenbalm seeks to proceed in 19 forma pauperis pursuant to 28 U.S.C. 1915 in all the referenced cases. 20 A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. 1915 "if the 21 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 22 an action or appeal in a court of the United States that was dismissed on the grounds that it is 23 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 24 prisoner is under imminent danger of serious physical injury." 28 U.S.C. 1915(g). Section 25 1915(g) requires that this court consider prisoner actions dismissed before, as well as after, the 26 statute's 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 27 For purposes of a dismissal that may be counted under 1915(g), the phrase "fails to state 28 a claim on which relief may be granted" parallels the language of Federal Rule of Civil Dockets.Justia.com Case 3:07-cv-01295-SI Document 4 Filed 03/21/2007 Page 2 of 3 1 Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that 2 is "'of little weight or importance: having no basis in law or fact,'" and the word "malicious" 3 refers to a case "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 4 1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories 5 can be counted as strikes for 1915(g) purposes, so the mere fact that Rosenbalm has filed many 6 cases, of which none apparently were successful, does not alone warrant dismissal under 7 1915(g). See id. Rather, dismissal of an action under 1915(g) should only occur when, "after 8 careful evaluation of the order dismissing an [earlier] action, and other relevant information, the 9 district court determines that the action was dismissed because it was frivolous, malicious or 10 failed to state a claim." Id. 11 For the Northern District of California United States District Court Andrews requires that the prisoner be given notice of the potential applicability of 12 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 13 ultimate burden of persuasion that 1915(g) does not bar pauper status for him. Id. Andrews 14 implicitly allows the court to sua sponte raise the 1915(g) problem, but requires the court to 15 notify the prisoner of the earlier dismissals it considers to support a 1915(g) dismissal and 16 allow the prisoner an opportunity to be heard on the matter before dismissing the action. See 17 id. at 1120. A dismissal under 1915(g) means that a prisoner cannot proceed with his action 18 as a pauper under 1915(g), but he still may pursue his claims if he pays the full filing fee at the 19 outset of the action. 20 A review of the dismissal orders in Rosenbalm's prior prisoner actions in this court 21 reveals that Rosenbalm has had at least three such cases dismissed on the ground that they were 22 frivolous, malicious, or failed to state a claim upon which relief may be granted. Rosenbalm is 23 now given notice that the court believes the following dismissals may be counted as dismissals 24 for purposes of 1915(g): (1) Rosenbalm v. Klein, N. D. Cal. Case No. C 96-850 SI (civil action 25 dismissed under former 1915(d) (allowing dismissal of pauper action "if satisfied that the 26 action is frivolous or malicious") because allegations in complaint duplicated allegations in an 27 earlier action); (2) Rosenbalm v. Lungren, N. D. Cal. Case No. C 96-2121 SI (civil action 28 2 Case 3:07-cv-01295-SI Document 4 Filed 03/21/2007 Page 3 of 3 1 dismissed under former 1915(d) (allowing dismissal of pauper action "if satisfied that the 2 action is frivolous or malicious") because allegations in complaint duplicated allegations in an 3 earlier action); (3) Rosenbalm v. Lungren, N. D. Cal. Case No. C 96-3375 SI (civil rights action 4 dismissed under former 1915(d) (allowing dismissal of pauper action "if satisfied that the 5 action is frivolous or malicious") because allegations in complaint duplicated allegations in an 6 earlier action); and (4) Rosenbalm v. State of California, N. D. Cal. Case No. C 96-0010 SI (civil 7 rights action dismissed for failure to state a claim upon which relief may be granted). The court 8 made its evaluation of these cases based on the dismissal orders in them. See Andrews, 398 F.3d 9 at 1120 (sometimes the docket records may be sufficient, and sometime the actual court files 10 may need to be consulted). 11 For the Northern District of California United States District Court In light of these dismissals, and because Rosenbalm does not appear to be under imminent 12 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 13 than April 27, 2007 why in forma pauperis should not be denied and this action should not be 14 dismissed pursuant to 28 U.S.C. 1915(g). In the alternative to showing cause why this action 15 should not be dismissed, Rosenbalm may avoid dismissal by paying the full $350.00 filing fee 16 by the deadline for each of the referenced cases. Rosenbalm also may be able to avoid dismissal 17 under 1915(g) by showing that his current residence in the Napa State Hospital is pursuant to 18 a civil commitment, rather than as part of the criminal proceedings against him. If he contends 19 he is in Napa State Hospital on a civil commitment, he must provide a copy of the order of 20 commitment as proof of that fact. 21 IT IS SO ORDERED. _____________________ SUSAN ILLSTON United States District Judge 22 Dated: March 21, 2007 23 24 25 26 27 28 3

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