Nichols v. Medina et al

Filing 7

ORDER TO SHOW CAUSE Show Cause Response due by 8/1/2013.. Signed by Judge William Alsup on 7/2/13. (Attachments: # 1 Certificate/Proof of Service)(dt, COURT STAFF) (Filed on 7/3/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JOSEPH NICHOLS,

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For the Northern District of California

United States District Court

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No. C 13-2155 WHA (PR)

Plaintiff,

ORDER TO SHOW CAUSE WHY
CASE SHOULD NOT BE DISMISSED
OR TO PAY FILING FEE; DENYING
APPOINTMENT OF COUNSEL

vs.
E. MEDINA, et al.,
Defendants.

(Docket No. 3)
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Plaintiff, a prisoner at Salinas Valley State Prison and a frequent litigant in federal court,
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has filed a pro se civil rights complaint under 42 U.S.C. 1983 challenging the conditions of his
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confinement. Among other things, he alleges that prison officials destroyed his mail and
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interfered with his administrative appeals and his lawsuits in state and federal court. Plaintiff
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also seeks to proceed in forma pauperis.
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The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective,
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on April 26, 1996. It provides that a prisoner may not bring a civil action or appeal a civil
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judgment under 28 U.S.C. 1915 "if the prisoner has, on 3 or more prior occasions, while
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incarcerated or detained in any facility, brought an action or appeal in a court of the United
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States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
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upon which relief may be granted, unless the prisoner is under imminent danger of serious
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physical injury." 28 U.S.C. § 1915(g). "Section 1915(g)'s cap on prior dismissed claims
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applies to claims dismissed both before and after the [PLRA's] effective date." Tierney v.
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Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).
For purposes of a dismissal that may be counted under 1915(g), the phrase "fails to state

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

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Procedure 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that

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is "'of little weight or importance: having no basis in law or fact,'" and the word "malicious"

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refers to a case "filed with the 'intention or desire to harm another.'" Andrews v. King, 398

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F.3d1113, 1121 (9th Cir. 2005) (citation omitted).

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

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

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

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Ibid. Andrews implicitly allows the court to sua sponte raise the Section 1915(g) problem, but
requires the court to notify the prisoner of the earlier dismissals it considers to support a Section

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For the Northern District of California

United States District Court

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1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before

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dismissing the action. See id. at 1120. A dismissal under Section 1915(g) means that a prisoner

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cannot proceed with his action as a pauper, but he still may pursue his claims if he pays the full

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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 cases dismissed on the ground that they were frivolous, malicious, or

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failed to state a claim upon which relief may be granted. Plaintiff is now given notice that the

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following dismissals may be counted as dismissals for purposes of 1915(g): See, e.g., Nichols

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v. Weissberg, No. C 01-CV-2159 VRW (N.D. Cal. June 8, 2001) (order dismissing complaint

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for failure to state a cognizable claim for relief); Nichols v. Weissberg, No. C 01-CV-2447

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VRW (N.D. Cal. June 28, 2001) (same); Nichols v. Hunt, No. C 02-CV-300 JNK (S.D. Cal.

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Apr. 24, 2002) (same); Nichols v. Biggs, No. C 03-CV-1476 MJL (S.D. Cal. Aug. 27, 2003)

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(same); Nichols v. Laird, No. C 04-CV-1662 NAJ (S.D. Cal. Sept. 17, 2004) (same); Nichols v.

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Laird, No. C 04-CV-2090 JTM (S.D. Cal. Jan 6, 2005) (same); Nichols v. Hunt, No. C 04-CV-

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2192 TJW (S.D. Cal. Dec. 27, 2004) (same); Nichols v. Logan, No. C 04-CV-2533 MLH (S.D.

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Cal. Dec. 29, 2004) (same). The evaluation of the grounds for the dismissal of these cases is

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based on the dismissal orders filed in them. See Andrews, 398 F.3d at 1120.

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Plaintiff therefore may proceed in forma pauperis only if he is seeking relief from a
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danger of serious physical injury which is “imminent” at the time of filing. See Abdul-Akbar v

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McKelvie, 239 F.3d 307, 312 (3d. Cir. 2001) (en banc). He is not.

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Accordingly, plaintiff shall show cause in writing filed no later than twenty-eight days

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from the date this order is filed why in forma pauperis should not be denied and this action

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

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this action should not be dismissed, plaintiff may avoid dismissal by paying the full $350.00

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filing fee by the deadline. Plaintiff’s failure to do so will result in the dismissal of this

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action.

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IT IS SO ORDERED.

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Dated: July
For the Northern District of California

United States District Court

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The motion for appointment of counsel (dkt. 3) is DENIED without prejudice.

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, 2013.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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