DeBose v. Wildman et al

Filing 4

ORDER TO SHOW CAUSE RE: CONTEMPLATED DISMISSAL (Illston, Susan) (Filed on 10/5/2017)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

DONALD RAY DEBOSE,
Plaintiff,

8
9
10

United States District Court
Northern District of California

11

Case No. 17-cv-03705-SI
ORDER TO SHOW CAUSE RE.
CONTEMPLATED DISMISSAL

v.
DAVID A. WILDMAN, et al.,
Defendants.

12
13

Donald Ray Debose, a prisoner at San Quentin State Prison, filed this pro se civil action

14

naming as defendants several California officials (i.e., the Governor, member of the Legislature,

15

justices of the California Supreme Court, another judge, a prosecutor, and former and current

16

members of the California Attorney General’s office). He also has applied to proceed in forma

17

pauperis pursuant to 28 U.S.C. § 1915.

18

A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 “if the

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

1

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

2

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

3

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

4

warrant dismissal of the present action under § 1915(g). See id. Rather, dismissal of an action

5

under § 1915(g) should only occur when, “after careful evaluation of the order dismissing an

6

[earlier] action, and other relevant information, the district court determines that the action was

7

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),

9

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

10

burden of persuasion that § 1915(g) does not bar pauper status for him. Id. Andrews implicitly

11
United States District Court
Northern District of California

8

allows the court to sua sponte raise the § 1915(g) problem, but requires the court to notify the

12

prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the

13

prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A

14

dismissal under § 1915(g) means that a prisoner cannot proceed with his action as a pauper under

15

§ 1915, but he still may pursue his claims if he pays the full filing fee at the outset of the action.

16

Debose is now given notice that the court believes the following dismissals may be

17

counted as dismissals for purposes of § 1915(g): First, Debose v. Chappell, N. D. Cal. Case No. C

18

12-4234 SI, was dismissed for failure to state a claim upon which relief may be granted, and no

19

appeal was taken. Second, Debose v. Governor Brown, N. D. Cal. Case No. C 12-6169 SI, was

20

dismissed for failure to state a claim. Third, Debose v. Ronald George, Ninth Cir. No. 13-17177

21

(which was the appeal from N. D. Cal. Case No. 12-6169 SI), was determined to be frivolous in an

22

order filed December 19, 2013, and was dismissed on January 10, 2014, when appellant failed to

23

pay the full filing fee as ordered when the appeal was found to be frivolous. The court made its

24

evaluation of these cases based on the dismissal orders and docket sheets in them. See Andrews,

25

398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime the actual court

26

files may need to be consulted).

27
28
2

1

In light of these dismissals, and because Debose does not appear to be under imminent

2

danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later

3

than November 6, 2017, why in forma pauperis status should not be denied and this action should

4

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

5

action should not be dismissed, Debose may avoid dismissal by paying the full $400.00 filing fee

6

by the deadline.

7
8
9
10

IT IS SO ORDERED.
Dated: October 5, 2017
______________________________________
SUSAN ILLSTON
United States District Judge

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3