Turner v. Torre et al

Filing 7

ORDER VACATING ORDER OF DISMISSAL AND JUDGMENT; DIRECTING PLAINTIFF TO EITHER PAY THE FILING FEE OR SHOW CAUSE WHY IN FORMA PAUPERIS STATUS SHOULD NOT BE DENIED AND THE COMPLAINT DISMISSED. Signed by Judge Jeffrey S. White on 7/11/12. (jjoS, COURT STAFF) (Filed on 7/11/2012)

1
2
3
4
5
6
7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
10
11
12
13
14
15
16

EDWARD L. TURNER,

)
)
)
)
Plaintiff,
)
)
)
v.
)
)
)
K. TORRE, et al.,
)
)
)
Defendants.
__________________________________ )

No. C 12-2478 JSW (PR)
ORDER VACATING ORDER
OF DISMISSAL AND
JUDGMENT; DIRECTING
PLAINTIFF TO EITHER PAY
THE FILING FEE OR SHOW
CAUSE WHY IN FORMA
PAUPERIS STATUS SHOULD
NOT BE DENIED AND THE
COMPLAINT DISMISSED

17
INTRODUCTION
18
Plaintiff, a California prisoner proceeding pro se, filed this civil rights case under
19
42 U.S.C. § 1983. He has applied for leave to proceed in forma pauperis. This Court
20
reviews the complaint pursuant to 28 U.S.C. § 1915A. For the reasons discussed below,
21
Plaintiff is ordered to show cause why leave to proceed in forma pauperis should not be
22
denied and the case dismissed pursuant to 28 U.S.C. § 1915(g). The order of dismissal
23
and judgment filed in this case July 9, 2012, are VACATED as having been filed in
24
error.
25
DISCUSSION
26
A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. 1915 "if
27
the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
28

1

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

2

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

3

be granted, unless the prisoner is under imminent danger of serious physical injury." 28

4

U.S.C. § 1915(g). Section 1915(g) requires that this court consider prisoner actions

5

dismissed before, as well as after, the statute's 1996 enactment. Tierney v. Kupers, 128

6

F.3d 1310, 1311-12 (9th Cir. 1997).

7

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

8

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

9

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

10

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

11

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

12

another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted).

13

Andrews requires that the prisoner be given notice of the potential applicability of

14

Section 1915(g), by either the district court or the defendants, but also requires the

15

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

16

pauper status for him. Id. Andrews implicitly allows the court to sua sponte raise the

17

Section 1915(g) problem, but requires the court to notify the prisoner of the earlier

18

dismissals it considers to support a Section 1915(g) dismissal and allow the prisoner an

19

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

20

dismissal under Section 1915(g) means that a prisoner cannot proceed with his action as

21

a pauper under Section 1915(g), but he still may pursue his claims if he pays the full

22

filing fee at the outset of the action.

23

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

24

he has had at least three such cases or appeals dismissed on the ground that they were

25

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

26

Plaintiff is now given notice that the Court believes the following dismissals may be

27

counted as dismissals for purposes of Section 1915(g): (1) Turner v. Townsend,

28

Townsend & Crew, L.L.P., N.D. Cal. Case No. C 11-1241 JSW (PR) (Mar. 29, 2011)

1

(civil rights action dismissed as duplicative, see Cato v. United States, 70 F.3d 1103,

2

1105 n.2 (9th Cir. 1995) (duplicative case subject to dismissal as abusive); Bailey v.

3

Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) (duplicative case subject to dismissal as

4

malicious)), appeal dismissed, No. 11-17860 (9th Cir. Jan 11, 2012); (2) Turner v.

5

Chung, N.D. Cal. Case No. C 11-0865 JSW (PR) (Mar. 29, 2011) (civil rights action

6

dismissed for failure to state a cognizable claim for relief) (no appeal); (3) Turner v.

7

Lewis, N.D. Cal. Case No. C 10-5482 JSW (PR) (May 31, 2011) (civil rights action

8

dismissed as duplicative) (no appeal); and (4) Turner v. County of Contra Costa, N. D.

9

Cal. Case No. C 10-2443 JSW (PR) (Nov. 16, 2010) (civil rights action dismissed for

10

failure to state a claim upon which relief may be granted) (no appeal). The court made

11

its evaluation of these cases based on the dismissal orders in them. See Andrews, 398

12

F.3d at 1120.

13
14

CONCLUSION
In light of the dismissals cited above, and because Plaintiff does not appear to be

15

under imminent danger of serious physical injury, he shall SHOW CAUSE in writing

16

filed no later than August 15, 2012, why in forma pauperis should not be denied and this

17

case should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative,

18

plaintiff may avoid dismissal by paying the full $350.00 filing fee by August 15, 2012.

19

Plaintiff’s failure to take either of these actions will result in the dismissal of this case.

20

The order of dismissal and judgment filed in this case on July 9, 2012, are

21
22
23

VACATED. The Clerk shall reopen the file.
IT IS SO ORDERED.
DATED: July 11, 2012

24
25
26
27
28

JEFFREY S. WHITE
United States District Judge

1

UNITED STATES DISTRICT COURT

2

FOR THE

3

NORTHERN DISTRICT OF CALIFORNIA

4
5
EDWARD L. TURNER,

Case Number: CV12-02478 JSW

6
Plaintiff,

CERTIFICATE OF SERVICE

7
v.

8
K. TORRE et al,

9
Defendant.

10
11
12
13
14

/

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 11, 2012, 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.

15
16
17
18
19
20
21
22
23
24
25
26
27
28

Edward L. Turner V-25872
Pleasant Valley State Prison
P. O. Box 8500
Coalinga, CA 93210
Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk