Gibson v. Gonzales et al

Filing 5

ORDER OF DISMISSAL. Signed by Judge Charles R. Breyer on 2/7/2017. (Attachments: # 1 Certificate/Proof of Service)(lsS, COURT STAFF) (Filed on 2/7/2017)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT D. GIBSON, E09929,
Plaintiff(s),

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vs.
R. GONZALES, et al.,
Defendant(s).

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No. C 16-6097 CRB (PR)
ORDER OF DISMISSAL

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Plaintiff, a prisoner at Salinas Valley State Prison and frequent litigant in

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federal court, filed a pro se complaint under 42 U.S.C. § 1983 challenging a

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disciplinary finding that resulted in his losing “privileges and out of cell time.”

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Compl. (ECF No. 1) at 3. He also claims retaliation for filing inmate grievances

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and mail censorship. Plaintiff sought leave to proceed in forma pauperis (IFP)

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under 28 U.S.C. § 1915.

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On January 17, 2017, the court found that 28 U.S.C. § 1915(g) bars

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plaintiff from proceeding IFP in this action because plaintiff: (1) has had three or

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more prior prisoner actions dismissed by a federal court on the grounds that they

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are frivolous, malicious, or fail to state a claim upon which relief may be granted;

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and (2) is not seeking relief from a danger of serious physical injury which is

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imminent at the time of filing. Jan. 17, 2017 Order at 2 (citing cases).

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Pursuant to the law of the circuit, plaintiff nonetheless was afforded an

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opportunity to persuade the court that § 1915(g) does not bar IFP status for him.

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Id. (citing Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005)). The court

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gave plaintiff 28 days to “show cause why § 1915(g) does not bar IFP status for

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him,” and explained that [f]ailure to show cause, or pay the requisite $ 400.00

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filing fee, within the designated time will result in the dismissal of this action

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without prejudice to bringing it in a new paid complaint.” Id.

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Plaintiff has responded by filing a “response/objection” (ECF No. 4) in

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which he argues that all but one of the prior dismissals cited by the court pre date

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§ 1915(g) and constitute a strike. Not so. The court carefully reviewed six prior

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dismissals of plaintiff’s and found that three were prisoner actions dismissed on

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the ground that they are frivolous, malicious, or fail to state a claim upon which

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relief may be granted – (1) Gibson v. Chief Medical Officer, No. 2:09-cv-00320-

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MSB (E.D. Cal. Dec. 14, 2010) (order of dismissal for failure to state a claim

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upon which relief may be granted); (2) Gibson v. Gomez, No. 3:95-cv-03114-

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VRW (N.D. Cal. Nov. 6, 1995) (same); and (3) Gibson v. Walco Co., No. 3:95-

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cv-02430-VRW (N.D. Cal. Nov. 6, 1995) (same). The other three prior

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dismissals were prisoner actions dismissed because the court denied plaintiff

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leave to proceed IFP – (4) Gibson v. Wilson, No. 2:95-cv-04612-UA (C.D. Cal.

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July 12, 1995) (screening order denying leave to file action without prepayment

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of filing fee); (5) Gibson v. Wilson, No. 2:95-cv-04611-UA (C.D. Cal. July 12,

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1995) (same); and (6) Gibson v. Cal. Appellate Project, No. 2:95-cv-01173-UA

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(C.D. Cal. Feb. 24, 1995) (same). Although it’s unclear whether prior dismissals

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(4), (5) or (6) constitute strikes under § 1915(g), there is no question that prior

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dismissals (1), (2) and (3) constitute three separate strikes under § 1915(g). That

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two of them predate § 1915(g) is of no consequence because it is well-established

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in this circuit that § 1915(g)’s “cap on prior dismissed claims applies to claims

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dismissed both before and after [§ 1915’s] effective date.” Tierney v. Kupers,

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128 F.3d 1310, 1312 (9th Cir. 1997).

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Because plaintiff has not shown that § 1915(g) does not bar IFP status for

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him in this prison action, this prisoner action is DISMISSED without prejudice to

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plaintiff bringing it in a paid complaint.

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SO ORDERED.

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DATED: February 7, 2017

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CHARLES R. BREYER
United States District Judge

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G:\PRO-SE\CRB\CR.16\Gibson, R.16-6097.dismissal.wpd

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