Weaver v. Harrassment's, Conspiracy's Threats et al

Filing 4

ORDER TO SHOW CAUSE WHY PAUPER STATUS IS NOT BARRED. Show Cause Response due by 9/1/2014. Signed by Judge Richard Seeborg on 7/24/14. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 7/24/2014)

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*E-Filed 7/24/14*

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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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SAN FRANCISCO DIVISION

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WILLIE WEAVER,
Plaintiff,

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No. C 14-2449 RS (PR)
ORDER TO SHOW CAUSE WHY
PAUPER STATUS IS NOT BARRED

v.
HARASSMENT’S, CONSPIRACY’S
THREATS, et al.,
Defendants.
/

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Plaintiff, a state prisoner and frequent litigant in federal court, has filed a pro se civil

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rights complaint under 42 U.S.C. § 1983 and a motion to proceed in forma pauperis under

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28 U.S.C. § 1915. Plaintiff is ordered to show cause on or before September 1, 2014 why

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28 U.S.C. § 1915(g) does not bar pauper status.

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The Prison Litigation Reform Act of 1995 provides that a prisoner may not bring a

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civil action or appeal a civil judgment under 28 U.S.C. § 1915 “if the prisoner has, on 3 or

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

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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

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No. C 14-2449 RS (PR)
ORDER TO SHOW CAUSE

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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). “Section 1915(g)’s

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cap on prior dismissed claims applies to claims dismissed both before and after the [PLRA’s]

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effective date.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir. 1997).

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Under the law of the circuit, plaintiff must be afforded an opportunity to persuade the
court that § 1915(g) does not bar pauper status for him. See Andrews v. King, 398 F.3d 1113,

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1120 (9th Cir. 2005). Andrews requires that the prisoner be given notice of the potential

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applicability of § 1915(g), by either the district court or the defendants, but also requires the

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

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for him. Id. Andrews implicitly allows the Court to raise sua sponte the § 1915(g) problem,

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United States District Court
For the Northern District of California

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but requires the Court to notify the prisoner of the earlier dismissals it considers to support a

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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. Id. A dismissal under § 1915(g) means that a prisoner cannot proceed

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

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full filing fee at the outset of the action.

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Here, plaintiff has had at least three prior prisoner actions or appeals dismissed

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by a federal court on the grounds that they are frivolous, malicious, or fail to state a claim

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upon which relief may be granted. See (1) Weaver v. Pelican Bay State Prison, No. C 04-

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3077 JW (PR) (N.D. Cal. May 18, 2005) (civil rights action dismissed for failure to state a

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claim upon which relief may be granted); (2) Weaver v. Nimrod, No. C 04-3154 JW (PR)

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(N.D. Cal. Dec. 14, 2004) (same); (3) Weaver v. Pelican Bay State Prison Mail Room,

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No. C 04-4784 JW (PR) (N.D. Cal. Jan. 5, 2005) (same); and (4) Weaver v. Daniel,

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No. C 05-1373 JW (PR) (N.D. Cal. May 9, 2005) (same).

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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

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v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189,

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1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v.

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O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).

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No. C 14-2449 RS (PR)
ORDER TO SHOW CAUSE

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

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imminent danger of serious physical injury, the Court now orders plaintiff to show cause why

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in forma pauperis should not be denied and this action should not be dismissed pursuant to

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28 U.S.C. § 1915(g). Plaintiff’s response to this order to show cause is due no later than

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September 1, 2014. The response must clearly be labeled “RESPONSE TO ORDER TO

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SHOW CAUSE.” In the alternative to showing cause why this action should not be

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dismissed, plaintiff may avoid dismissal by paying the full filing fee of $400.00 by the

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deadline. Failure to file a response by September 1, 2014 or failure to pay the full filing

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fee will result in the dismissal of this action without prejudice to bringing his claims in a

United States District Court
For the Northern District of California

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new paid complaint.
IT IS SO ORDERED.
DATED: July 24, 2014
RICHARD SEEBORG
United States District Judge

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No. C 14-2449 RS (PR)
ORDER TO SHOW CAUSE