Wilkins v. County of Contra Costa

Filing 18

ORDER TO SHOW CAUSE Plaintiff's Show Cause Response due by 5/18/2017.. Signed by Judge Thelton E. Henderson on 4/25/2017. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 4/26/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KENNAN G. WILKINS aka NERRAH BROWN, 8 Case No. 16-cv-7016-TEH Plaintiff, ORDER TO SHOW CAUSE 9 10 11 v. COUNTY OF CONTRA COSTA, et. al., United States District Court Northern District of California Defendants. 12 13 Plaintiff, a state prisoner, has filed a pro se civil rights 14 complaint under 42 U.S.C. § 1983. Plaintiff has also filed an 15 application to proceed in forma pauperis. Plaintiff alleges that 16 while being held at Martinez Detention Facility his Due Process 17 and Equal Protection rights were violated, he was denied access 18 to the courts, he was the victim of retaliation and subject to 19 cruel and unusual punishment. He is now incarcerated at RJ 20 Donovan Prison in San Diego County. 21 The Prison Litigation Reform Act of 1995 (“PLRA”), enacted 22 April 26, 1996, provides that a prisoner may not bring a civil 23 action or appeal a civil judgment under 28 U.S.C. § 1915 “if the 24 prisoner has, on three or more prior occasions, while 25 incarcerated or detained in any facility, brought an action or 26 appeal in a court of the United States that was dismissed on the 27 grounds that it is frivolous, malicious, or fails to state a 28 1 claim upon which relief may be granted, unless the prisoner is 2 under imminent danger of serious physical injury.” 3 1915(g). 4 be granted,” as used in § 1915(g), “parallels the language of 5 Federal Rule of Civil Procedure 12(b)(6).” 6 F.3d 1113, 1121 (9th Cir. 2005) (internal quotation marks 7 omitted). 8 if “it is of little weight or importance: having no basis in law 9 or fact.” 28 U.S.C. § The phrase “fails to state a claim on which relief may Andrews v. King, 398 A case is “frivolous” within the meaning of § 1915(g) Id. (internal quotation marks omitted). Further, because § 1915(g) is a procedural rule that does not raise 11 United States District Court Northern District of California 10 retroactivity concerns, cases dismissed before the effective date 12 of § 1915(g) may be counted as qualifying dismissals or 13 “strikes.” 14 Cir. 1997). 15 court cases as well as dismissals of appeals. 16 Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does not get 17 three frivolous claims and three frivolous appeals before being 18 barred by § 1915(g)). 19 prisoner cannot proceed with his action as a pauper under § 20 1915(g), but he still may pursue his claim if he pays the full 21 filing fee at the outset of the action. 22 See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th A court may count as strikes dismissals of district See Rodriguez v. A dismissal under § 1915(g) means that a It appears that plaintiff has at least four strikes pursuant 23 to § 1915(g). 24 2298 MMC (N.D. Cal.), the Court dismissed Plaintiff’s action 25 regarding the unauthorized, negligent, or intentional deprivation 26 of his property for failure to state claim. In Brown aka Wilkins v. North County Jail, No. 97- 27 28 2 This constitutes a 1 strike. 1 2 In Wilkins v. Ahorn, No. 08-3850 MMC (N.D. Cal.), the Court 3 dismissed Plaintiff’s action because Plaintiff sought to proceed 4 with the case as a class action. 5 The Court noted that Plaintiff was already proceeding with a 6 separate action with the same claims that just involved him. 7 This Court finds that the dismissal qualifies as a strike as a 8 dismissal for failure to state a claim. Docket No. 8 in No. 08-3850. In Brown v. County of Alameda, No. 11-2704 LHK (N.D. Cal.), 10 the Court dismissed Plaintiff’s second amended complaint without 11 United States District Court Northern District of California 9 leave to amend due to Plaintiff’s failure to comply with the 12 Federal Rules of Civil Procedure concerning joinder of claims and 13 Defendants. 14 appeal that the Court certified was not taken in good faith. 15 Docket No. 26 in No. 11-2704. 16 appeal for failure to prosecute. 17 Plaintiff also filed a motion for reconsideration in the District 18 Court that was denied and a motion for relief from judgment that 19 was also denied. 20 construes this dismissal as Plaintiff’s third strike for failure 21 to state a claim and as frivolous. 22 Docket No. 21 in No. 11-2704. Plaintiff filed an The Ninth Circuit denied the Docket No. 31 in No. 11-2704. Docket Nos. 29, 32, 34, 36. This Court Plaintiff then appealed the denial of the two post-judgment 23 motions in No. 11-2074 to the Ninth Circuit in Brown v. County of 24 Alameda, 13-17060 (9th Cir.). 25 found the appeal to frivolous. 26 Cir.). The Ninth Circuit specifically Docket No. 7 in No. 13-17060 (9th This qualifies as Plaintiff’s fourth strike. 27 1 28 This case was filed and dismissed after § 1915 was enacted on April 26, 1996, and counts as a strike. 3 1 Plaintiff shall show cause within twenty-one (21) days, why 2 this case should not be deemed three strikes barred and the 3 application to proceed in forma pauperis denied. 4 reply will result in dismissal. 5 6 IT IS SO ORDERED. Dated: 4/25/2017 7 ________________________ THELTON E. HENDERSON United States District Judge 8 9 G:\PRO-SE\TEH\CR.16\Wilkins7016.osc_p.docx 10 11 United States District Court Northern District of California Failure to 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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