Rodgers v. Munk et al

Filing 52

ORDER TO SHOW CAUSE IN WRITING: Order to Show Cause IN WRITING, to be filed by 12/2/2013 05:00 PM. Show Cause Response due by 12/2/2013, in writing, no appearance is necessary. Signed by Magistrate Judge Maria-Elena James on 11/7/2013. (Attachments: # 1 Proof of Service)(rmm2S, COURT STAFF) (Filed on 11/7/2013) Modified on 11/7/2013 (rmm2S, COURT STAFF).

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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United States District Court
For the Northern District of California

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ORDER TO SHOW CAUSE RE:
CONTEMPLATED DISMISSAL

Plaintiff,

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No. C 13-2116 MEJ (pr)

RUSSELL DWAYNE RODGERS,

v.
GREG MUNKS, San Mateo County Sheriff,
et al.,
Defendants.
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Plaintiff Russell Dwayne Rodgers filed a pro se civil rights action under 42 U.S.C.

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§ 1983 complaining of conditions at the San Mateo County Jail, where he is incarcerated.

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Plaintiff also sought leave to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915.

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Per orders filed June 17, 2013 and June 28, 2013, the Court granted plaintiff’s

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application to proceed IFP and ordered the complaint served on defendants Sheriff Munks,

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Lt. Kankel, Lt. Copeland and Sgt. Justice. It appears, however, that plaintiff is barred from

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proceeding IFP under 28 U.S.C. § 1915(g).

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The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996,

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provides that a prisoner may not bring a civil action or appeal a civil judgment under 28

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U.S.C. § 1915 (i.e., may not proceed in forma pauperis) “if the prisoner has, on 3 or more

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prior occasions, while incarcerated or detained in any facility, brought an action or appeal in

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a court of the United States that was dismissed on the grounds that it is frivolous, malicious,

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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). For purposes of a
dismissal that may be counted under § 1915(g), the phrase “fails to state a claim on which

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relief may be granted” parallels the language of Federal Rule of Civil Procedure 12(b)(6) and

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carries the same interpretation, the word “frivolous” refers to a case that is “ ‘of little weight

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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,

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1121 (9th Cir. 2005) (citation omitted). Further, because § 1915(g) is a procedural rule that

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does not raise retroactivity concerns, cases dismissed before the effective date of § 1915(g)

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may be counted as qualifying dismissals or “strikes.” See Tierney v. Kupers, 128 F.3d 1310,

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1311-12 (9th Cir. 1997).

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

United States District Court
For the Northern District of California

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§ 1915(g), by either the district court or the defendants, but also requires the prisoner to bear

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

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

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the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g)

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dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing

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the action. See id. at 1120. A dismissal under § 1915(g) means that a prisoner cannot

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proceed with his action as a pauper under § 1915(g), but he still may pursue his claims if he

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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 reveals that he has

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had at least three such actions dismissed on the grounds that they were frivolous, malicious,

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or failed to state a claim upon which relief may be granted. The qualifying cases include:

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(1) Rodgers v. Munks, N.D. Cal. Case No. C 12-5620 CRB (dismissed for failure to state

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claim): (2) Rodgers v. San Mateo County, N.D. Cal. Case No. C 10-1354 JW (same); and

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(3)Rodgers v. Griffith, N.D. Cal. Case No. C 07-5997 SBA (same).

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In light of these dismissals, and because plaintiff did not appear to be under imminent

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danger of serious physical injury when he filed the complaint, he is ORDERED TO SHOW

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CAUSE in writing filed no later than December 2, 2013, why his IFP status should not be

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revoked and this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the

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alternative to showing cause why the action should not be dismissed, plaintiff may avoid
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dismissal by paying the full $400.00 filing fee by the deadline. Failure to show cause, or pay

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the requisite $ 400.00 filing fee, within the designated time will result in the revocation of

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IFP status and the dismissal of this action without prejudice to bringing it in a new paid

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complaint.

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IT IS SO ORDERED.

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DATED:

November 7, 2013

United States District Court
For the Northern District of California

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Maria-Elena James

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United States Magistrate Judge

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