Muhammad v. Ahern et al

Filing 7

ORDER TO SHOW CAUSE. Show Cause Response due by 4/30/2012. Signed by Judge Edward M. Chen on 4/2/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 4/2/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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In Re

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ANSAR MUHAMMAD
a/k/a TONEY BENNETT,

United States District Court
For the Northern District of California

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No. C-11-4358 EMC (pr)
No. C-11-4433 EMC (pr)
No. C-11-4434 EMC (pr)
No. C-11-4889 EMC (pr)

Plaintiff.
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ORDER TO SHOW CAUSE RE
CONTEMPLATED DISMISSAL

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Ansar Muhammad, also known as Toney Bennett, an inmate currently at the Alameda

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County Jail, has filed these four civil rights actions under 42 U.S.C. § 1983 and applied to proceed

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in forma pauperis pursuant to 28 U.S.C. § 1915.

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A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 "if the

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prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an

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action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,

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

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imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Section 1915(g) requires that

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this court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment.

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Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).

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For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state a

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claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure

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12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "'of little

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weight or importance: having no basis in law or fact,'" and the word "malicious" refers to a case

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"filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th

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Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as

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strikes for § 1915(g) purposes, so the mere fact that Muhammad has filed many cases does not alone

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warrant dismissal under § 1915(g). See id. Rather, dismissal of an action under § 1915(g) should

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only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other

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relevant information, the district court determines that the action was dismissed because it was

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frivolous, malicious or failed to state a claim." Id.

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Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g),

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by either the district court or the defendants, but also requires the prisoner to bear the ultimate

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burden of persuasion that § 1915(g) does not bar pauper status for him. Id. Andrews implicitly

United States District Court
For the Northern District of California

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allows the court to sua sponte raise the § 1915(g) problem, but requires the court to notify the

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prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the prisoner

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an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal

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

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

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A review of the dismissal orders in Plaintiff’s prior prisoner actions and appeals reveals that

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he has had at least three such actions or appeals dismissed on the grounds that they were frivolous,

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malicious, or failed to state a claim upon which relief may be granted: Muhammad v. Martinez

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Detention Facility, No. C 02-2114 MHP (dismissed for failure to state a claim upon which relief

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may be granted); Muhammad v. Stokes, No. C 05-3694 MHP (dismissed for failure to state a claim

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upon which relief may be granted); Muhammad v. Schwarzenegger, No. C 06-739 MHP (dismissed

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

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In light of these dismissals, and because PLAINTIFF does not appear to be under imminent

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danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later

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than April 30, 2012 why in forma pauperis should not be denied and each of these actions should

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not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing cause why each

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action should not be dismissed, PLAINTIFF may avoid dismissal by paying the full $350.00 filing

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fee by the deadline for each action.

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IT IS SO ORDERED.

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United States District Court
For the Northern District of California

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Dated: April 2, 2012

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_________________________
EDWARD M. CHEN
United States District Judge

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