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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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 In Re 9 ANSAR MUHAMMAD a/k/a TONEY BENNETT, United States District Court For the Northern District of California 10 11 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. / ORDER TO SHOW CAUSE RE CONTEMPLATED DISMISSAL 12 13 14 Ansar Muhammad, also known as Toney Bennett, an inmate currently at the Alameda 15 County Jail, has filed these four civil rights actions under 42 U.S.C. § 1983 and applied to proceed 16 in forma pauperis pursuant to 28 U.S.C. § 1915. 17 A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 "if the 18 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an 19 action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 20 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 21 imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Section 1915(g) requires that 22 this court consider prisoner actions dismissed before, as well as after, the statute's 1996 enactment. 23 Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 24 For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state a 25 claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 26 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "'of little 27 weight or importance: having no basis in law or fact,'" and the word "malicious" refers to a case 28 "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th 1 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 2 strikes for § 1915(g) purposes, so the mere fact that Muhammad has filed many cases does not alone 3 warrant dismissal under § 1915(g). See id. Rather, dismissal of an action under § 1915(g) should 4 only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other 5 relevant information, the district court determines that the action was dismissed because it was 6 frivolous, malicious or failed to state a claim." Id. 7 Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g), 8 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 9 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 10 allows the court to sua sponte raise the § 1915(g) problem, but requires the court to notify the 11 prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the prisoner 12 an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal 13 under § 1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915(g), 14 but he still may pursue his claims if he pays the full filing fee at the outset of the action. 15 A review of the dismissal orders in Plaintiff’s prior prisoner actions and appeals reveals that 16 he has had at least three such actions or appeals dismissed on the grounds that they were frivolous, 17 malicious, or failed to state a claim upon which relief may be granted: Muhammad v. Martinez 18 Detention Facility, No. C 02-2114 MHP (dismissed for failure to state a claim upon which relief 19 may be granted); Muhammad v. Stokes, No. C 05-3694 MHP (dismissed for failure to state a claim 20 upon which relief may be granted); Muhammad v. Schwarzenegger, No. C 06-739 MHP (dismissed 21 for failure to state a claim upon which relief may be granted). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 2 1 In light of these dismissals, and because PLAINTIFF does not appear to be under imminent 2 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 3 than April 30, 2012 why in forma pauperis should not be denied and each of these actions should 4 not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing cause why each 5 action should not be dismissed, PLAINTIFF may avoid dismissal by paying the full $350.00 filing 6 fee by the deadline for each action. 7 8 IT IS SO ORDERED. 9 United States District Court For the Northern District of California 10 Dated: April 2, 2012 11 _________________________ EDWARD M. CHEN United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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