Woods v. Curry et al

Filing 7

ORDER TO SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE DENIED AND THE COMPLAINT DISMISSED. Signed by Judge Jeffrey S. White on 11/15/10. (jjoS, COURT STAFF) (Filed on 11/16/2010)

Woods v. Curry et al

Doc. 7

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EARNEST. C. WOODS, II, Plaintiff, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants. __________________________________

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No. C 10-1859 JSW (PR) ORDER FOR PLAINTIFF TO SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE DENIED AND THE COMPLAINT DISMISSED

INTRODUCTION Plaintiff, an inmate at the San Francisco County Jail, has filed this pro se civil rights complaint under 42 U.S.C. § 1983. He has applied for leave to proceed in forma pauperis in a separate order. This Court reviews the complaint pursuant to 28 U.S.C. § 1915A. For the reasons discussed below, Plaintiff is ordered to show cause why leave to proceed in forma pauperis should not be denied and the case dismissed pursuant to 28 U.S.C. § 1915(g). DISCUSSION A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. 1915 "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." 28 U.S.C. § 1915(g). Section 1915(g) requires that this court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128

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F.3d 1310, 1311-12 (9th Cir. 1997). For purposes of a dismissal that may be counted under Section 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "'of little weight or importance: having no basis in law or fact,'" and the word "malicious" refers to a case "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted). Andrews requires that the prisoner be given notice of the potential applicability of Section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate burden of persuasion that Section 1915(g) does not bar pauper status for him. Id. Andrews implicitly allows the court to sua sponte raise the Section 1915(g) problem, but requires the court to notify the prisoner of the earlier dismissals it considers to support a Section 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal under Section 1915(g) means that a prisoner cannot proceed with his action as a pauper under Section 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action. A review of the dismissal orders in plaintiff's prior prisoner actions reveals that he has had at least three such cases or appeals dismissed on the ground that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the following dismissals may be counted as dismissals for purposes of Section 1915(g): (1) Woods v. Carey, et al., E. D. Cal. Case No. C 05-0049 MCE-DAD (Jan. 26, 2006) (civil rights action dismissed for failure to state a claim upon which relief may be granted), aff'd Appeal No. C 06-15973 (9th Cir. Jan. 18, 2007); (2) Woods v. Hill, et al., N.D. Cal. Case No. C 05-1157 MJJ (May 31, 2005) (civil rights action dismissed for failure to state a claim upon which relief may be granted), aff'd Appeal No. C 06-15973 (9th Cir. Nov. 27, 2007); (3) Woods v. Carey, et al., Appeal No. 08-15595 (9th Cir. April 18, 2008) (appeal in civil rights

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case dismissed for lack of jurisdiction); and (4) Woods v. Carey, et al., Appeal No. 1016741 (9th Cir. August 24, 2010) (appeal in civil rights case dismissed for lack of jurisdiction). The court made its evaluation of these cases based on the dismissal orders in them. See Andrews, 398 F.3d at 1120. CONCLUSION In light of the dismissals cited above, and because Plaintiff does not appear to be under imminent danger of serious physical injury, he shall SHOW CAUSE in writing filed no later than December 21, 2010, why in forma pauperis should not be denied and this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing cause why this action should not be dismissed, plaintiff may avoid dismissal by paying the full $350.00 filing fee by December 21, 2010. Plaintiff's failure to do so will result in the dismissal of this action. IT IS SO ORDERED. DATED: November 15, 2010

JEFFREY S. WHITE United States District Judge

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Earnest C. Woods D 58091 P.O. Box 689 Soledad, CA 95696 Dated: November 16, 2010 EARNEST C. WOODS II, Plaintiff, v. BEN CURRY et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV10-01859 JSW CERTIFICATE OF SERVICE

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on November 16, 2010, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Richard W. Wieking, Clerk By: Jennifer Ottolini, Deputy Clerk