Weaver v. Counselor et al

Filing 4

ORDER TO SHOW CAUSE WHY PAUPER STATUS IS NOT BARRED. Show Cause Response due by 12/1/2014. Signed by Judge Richard Seeborg on 10/20/2014. (Attachments: # 1 Certificate/Proof of Service)(mklS, COURT STAFF) (Filed on 10/21/2014)

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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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IN RE WILLIE WEAVER,

No. C 14-0046 RS (PR)
No. C 14-2823 RS (PR)
No. C 14-2906 RS (PR)
No. C 14-3019 RS (PR)
No. C 14-3148 RS (PR)
No. C 14-3149 RS (PR)
No. C 14-3307 RS (PR)
No. C 14-3308 RS (PR)
No. C 14-3967 RS (PR)

Plaintiff.

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ORDER TO SHOW CAUSE WHY
PAUPER STATUS IS NOT BARRED

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Plaintiff, a state prisoner and frequent litigant in federal court, has filed the above pro

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se civil rights complaints under 42 U.S.C. § 1983 along with motions to proceed in forma

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pauperis under 28 U.S.C. § 1915. Plaintiff is ordered to show cause on or before December

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1, 2014 why 28 U.S.C. § 1915(g) does not bar pauper status in each action.

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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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IN RE WEAVER
ORDER TO SHOW CAUSE

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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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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).
Under the law of this Circuit, plaintiff must be afforded an opportunity to persuade the

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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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United States District Court
For the Northern District of California

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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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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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These strikes are presumed valid. Plaintiff has had many recent opportunities to

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challenge the Court’s determination that these prior actions are strikes, and he has failed to

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do so effectively. Plaintiff therefore may proceed in forma pauperis only if he is seeking

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2

IN RE WEAVER
ORDER TO SHOW CAUSE

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relief from a danger of serious physical injury which is “imminent” at the time of filing. See

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Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler,

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185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.

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

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

United States District Court
For the Northern District of California

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

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

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action by the deadline. Failure to file a response by December 1, 2014 or failure to pay

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the full filing fee will result in the dismissal of each action without prejudice to bringing

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his claims in new paid complaints.

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IT IS SO ORDERED.

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DATED: October 20, 2014
RICHARD SEEBORG
United States District Judge

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IN RE WEAVER
ORDER TO SHOW CAUSE