DeBose v. Wildman et al
Filing
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ORDER TO SHOW CAUSE RE: CONTEMPLATED DISMISSAL (Illston, Susan) (Filed on 10/5/2017)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DONALD RAY DEBOSE,
Plaintiff,
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United States District Court
Northern District of California
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Case No. 17-cv-03705-SI
ORDER TO SHOW CAUSE RE.
CONTEMPLATED DISMISSAL
v.
DAVID A. WILDMAN, et al.,
Defendants.
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Donald Ray Debose, a prisoner at San Quentin State Prison, filed this pro se civil action
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naming as defendants several California officials (i.e., the Governor, member of the Legislature,
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justices of the California Supreme Court, another judge, a prosecutor, and former and current
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members of the California Attorney General’s office). He also has applied to proceed in forma
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pauperis pursuant to 28 U.S.C. § 1915.
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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 this 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 Debose has filed many cases does not alone
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warrant dismissal of the present action under § 1915(g). See id. Rather, dismissal of an action
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under § 1915(g) should only occur when, “after careful evaluation of the order dismissing an
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[earlier] action, and other relevant information, the district court determines that the action was
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dismissed because it was frivolous, malicious or failed to state a claim.” Id.
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. Id. Andrews implicitly
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United States District Court
Northern District of California
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allows the court to sua sponte raise the § 1915(g) problem, but requires the court to notify the
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prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the
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prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A
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dismissal under § 1915(g) means that a prisoner cannot proceed with his action as a pauper under
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§ 1915, but he still may pursue his claims if he pays the full filing fee at the outset of the action.
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Debose 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, Debose v. Chappell, N. D. Cal. Case No. C
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12-4234 SI, was dismissed for failure to state a claim upon which relief may be granted, and no
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appeal was taken. Second, Debose v. Governor Brown, N. D. Cal. Case No. C 12-6169 SI, was
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dismissed for failure to state a claim. Third, Debose v. Ronald George, Ninth Cir. No. 13-17177
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(which was the appeal from N. D. Cal. Case No. 12-6169 SI), was determined to be frivolous in an
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order filed December 19, 2013, and was dismissed on January 10, 2014, when appellant failed to
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pay the full filing fee as ordered when the appeal was found to be frivolous. The court made its
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evaluation of these cases based on the dismissal orders and docket sheets in them. See Andrews,
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398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime the actual court
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files may need to be consulted).
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In light of these dismissals, and because Debose does not appear to be under imminent
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danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later
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than November 6, 2017, why in forma pauperis status should not be denied and this action should
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not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing cause why the
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action should not be dismissed, Debose may avoid dismissal by paying the full $400.00 filing fee
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by the deadline.
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IT IS SO ORDERED.
Dated: October 5, 2017
______________________________________
SUSAN ILLSTON
United States District Judge
United States District Court
Northern District of California
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