Tanksley v. CDC-Salinas et al

Filing 59

ORDER GRANTING MOTION TO REVOKE IN FORMA PAUPERIS STATUS; TO PAY FILING FEE. Signed by Judge Jeffrey S. White on 7/15/11. (jjoS, COURT STAFF) (Filed on 7/15/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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Plaintiff,
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v.
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S. ARANDA; J. WILLS; E. BEAM; P
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SULLIVAN; G. BIAGGINI; W MUNIZ;
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E.B. JONES,
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Defendants.
_________________________________ )
MOODY WOODROW TANKSLEY,

No. C 11-0259 JSW (PR)
ORDER GRANTING MOTION TO
REVOKE IN FORMA PAUPERIS
STATUS; TO PAY FILING FEE
(Docket No. 56)

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INTRODUCTION

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Plaintiff, a California prisoner proceeding pro se, has filed this civil rights case

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under 42 U.S.C. § 1983. Defendants have filed a motion to revoke Plaintiff’s in forma

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pauperis status pursuant to 28 U.S.C. § 1915(g). Although given an opportunity to do

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so, Plaintiff has not opposed the motion. For the reasons discussed below, the motion to

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revoke is GRANTED, and Plaintiff is ordered to pay the filing fee within 30 days or the

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case will be dismissed.

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DISCUSSION

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A prisoner may not bring a civil action in forma pauperis under Section 1915(g)

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"if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United States that was dismissed

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on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief

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may be granted, unless the prisoner is under imminent danger of serious physical

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injury." 28 U.S.C. § 1915(g). A prisoner must be given notice of the potential

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disqualification under Section 1915(g), by either the district court or the defendants, but

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the prisoner bears the ultimate burden of persuasion that Section 1915(g) does not bar

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pauper status for him. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). Andrews

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also requires that the prisoner be allowed an opportunity to be heard on the matter

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before dismissing the action. See id. at 1120.

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For purposes of a dismissal that may be counted under Section 1915(g), the

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phrase "fails to state a claim on which relief may be granted" parallels the language of

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Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation, the word

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"frivolous" refers to a case that is "'of little weight or importance: having no basis in law

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or fact,'" and the word "malicious" refers to a case "filed with the 'intention or desire to

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harm another.'" Id. at 1121 (citation omitted).

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After reviewing the orders filed in Plaintiff’s prior civil rights cases, see

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Andrews, 398 F.3d at 1120, the Court has found that on least three prior occasions,

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Plaintiff filed cases in federal court that were dismissed on the ground that they were

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frivolous, malicious, or failed to state a claim upon which relief may be granted,

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including: (1) Tanksley v. Tulare, et al., E.D. Cal. Case No. C 01-6593 AWI-WMW

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(July 7, 2006) (civil rights action dismissed for failure to amend after complaint and

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first amended complaint dismissed for failure to state a claim upon which relief may be

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granted); (2) Tanksley v. Blackwell, et al., E.D. Cal. Case No. C 08-0093 OWW-GBC

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(February 9, 2011) (civil rights action dismissed for failure to state a claim upon which

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relief may be granted); (3) Tanksley v. Avenal State Prison, et al., E.D. Cal. Case No. C

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08-0442 OWW-DLB (April 13, 2009) (civil rights action dismissed for failure to state a

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claim upon which relief may be granted); and (4) Tanksley v. California Department of

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Corrections, et al., E.D. Cal. Case No. C 08-1608 GSA (February 12, 2009) (civil rights

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action dismissed for failure to state a claim upon which relief may be granted).1

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The foregoing dismissals of Plaintiff’s prior civil rights actions for failure to state

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a claim upon which relief can be granted in cases in which Plaintiff was proceeding in

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forma pauperis qualify as dismissals under Section 1915(g). Furthermore, Plaintiff has

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not alleged that he is in imminent danger of any serious physical injury. Plaintiff was

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given an opportunity to file an opposition to defendants’ motion in which to show that

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the foregoing dismissals do not qualify as “strikes” or that he is in imminent danger of

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serious physical injury. He has not done so. As a result, he is barred from proceeding

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in forma pauperis herein under Section 1915(g), and his pauper status will be revoked.

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Plaintiff will be given thirty days in which to pay the full filing fee, and if he does not

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do so, this action will be dismissed.

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CONCLUSION

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The motion to revoke Plaintiff’s pauper status (docket number 56) is

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GRANTED. Within thirty days of the date this order is filed, Plaintiff shall pay the

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entire filing fee; if he does not do so, this action will be dismissed.

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IT IS SO ORDERED.
DATED: July 15, 2011

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JEFFREY S. WHITE
United States District Judge

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Defendants cite a fifth dismissal, but it was of a petition for a writ of habeas corpus.
Dismissals of habeas petitions do not count as “strikes” under Section 1915(g). Andrews, 398
F.3d at 1122.

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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MOODY W. TANKSLEY,

Case Number: CV11-00259 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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ARANDA ET AL et al,

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Defendant.

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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 July 15, 2011, 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.

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Moody W. Tanksley F-65317
Atascadero State Hospital
P.O. Box 7001
Atascadero, CA 93423-7001
Dated: July 15, 2011
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk