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)
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?