Toscano v. Ducart

Filing 5

ORDER TO SHOW CAUSE Re Contemplated Dismissal. Show Cause Response due by 10/20/2017. Signed by Judge Edward M. Chen on 9/26/2017. (Attachments: # 1 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 9/26/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BENJAMIN K. TOSCANO,
Plaintiff,

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ORDER TO SHOW CAUSE RE
CONTEMPLATED DISMISSAL

v.
C. E. DUCART, et al.,

Docket No. 1

Defendants.

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For the Northern District of California

United States District Court

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Case No. 17-cv-02635-EMC

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Benjamin Toscano, a prisoner at Pelican Bay State Prison, filed this pro se civil rights
action and has applied to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 “if the

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prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

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

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requires that the court consider prisoner actions dismissed before, as well as after, the statute's

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1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997).

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For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state

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a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure

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12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “„of little

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weight or importance: having no basis in law or fact,‟” and the word “malicious” refers to a case

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“filed with the „intention or desire to harm another.‟” Andrews v. King, 398 F.3d 1113, 1121 (9th

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Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as

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strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not

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alone warrant dismissal of the present action under § 1915(g). See Andrews, 398 F.3d at 1121.

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Rather, dismissal of an action under § 1915(g) should only occur when, “after careful evaluation

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of the order dismissing an [earlier] action, and other relevant information, the district court

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determines that the action was dismissed because it was frivolous, malicious or failed to state a

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claim.” Andrews, 398 F.3d at 1121.
Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g),

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by either the district court or the defendants, but also requires the prisoner to bear the ultimate

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burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at

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1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires

dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the

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For the Northern District of California

the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g)

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United States District Court

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action. Andrews, 398 F.3d at 1120. A dismissal under § 1915(g) means that a prisoner cannot

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

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full filing fee at the outset of the action.
Mr. Toscano is now given notice that the Court believes the following dismissals may be

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counted as dismissals for purposes of § 1915(g): First, Toscano v. Kernan, E. D. Cal. Case No.

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16-cv-1554 EPG, was dismissed on April 17, 2017, for failure to state a claim upon which relief

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may be granted. Second, Toscano v. Kernan, E. D. Cal. Case No. 17-cv-292 MJS (PC), was

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dismissed on April 18, 2017, for failure to state a claim upon which relief may be granted. Third,

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Toscano v. Lewis, N.D. Cal. Case No. 14-cv-587 EMC, was dismissed on September 3, 2014, as

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frivolous. The Court made its evaluation of these cases based on the dismissal orders and docket

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sheets in them. See Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient,

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and sometimes, the actual court files may need to be consulted).

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In light of these dismissals, and because Mr. Toscano does not appear to be under

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imminent danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing

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filed no later than October 20, 2017, why in forma pauperis status should not be denied and this

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action should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing

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cause why the action should not be dismissed, Mr. Toscano may avoid dismissal by paying the full

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$400.00 filing fee by the deadline.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: September 26, 2017
______________________________________
EDWARD M. CHEN
United States District Judge

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