Barth v. Serintero et al

Filing 17

ORDER OF DISMISSAL. This federal civil rights action is DISMISSED without prejudice to Barth bringing his claims in a new paid complaint. Signed by Judge William H. Orrick on 07/19/2021. (jmdS, COURT STAFF) (Filed on 7/19/2021)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 3:20-cv-05137-WHO Document 17 Filed 07/19/21 Page 1 of 3

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SHAWN DAMON BARTH,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 20-cv-05137-WHO (PR)
ORDER OF DISMISSAL

v.
SERINTENO, et al.,
Defendants.

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INTRODUCTION
Plaintiff Shawn Damon Barth is barred from bringing this action in forma pauperis

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because he has filed three or more federal actions that were dismissed as frivolous,

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malicious, or on grounds that they failed to state a claim for relief. He was ordered to

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show cause why the action should not be dismissed, but he has not filed any response to

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the order. Accordingly, this federal civil rights action is DISMISSED without prejudice to

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Barth bringing his claims in a new paid complaint.

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BACKGROUND
Barth, a state prisoner and frequent litigant in federal court, filed this federal civil

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rights action under 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis

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(IFP) under 28 U.S.C. § 1915. The original complaint was dismissed with leave to amend,

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and Barth’s motion to proceed IFP was granted. (Dkt. Nos. 9 and 10.) After he filed an

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amended complaint, I learned that he may not be entitled to IFP status under § 1915

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because he has brought three or more lawsuits that were frivolous, malicious or failed to

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state a claim on which relief could be granted.

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Case 3:20-cv-05137-WHO Document 17 Filed 07/19/21 Page 2 of 3

Barth was ordered to show cause why the action should not be dismissed under 28

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U.S.C. § 1915(g), which provides that a prisoner may not bring a civil action IFP “if the

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

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brought an action or appeal in a court of the United States that was dismissed on the

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

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granted, unless the prisoner is under imminent danger of serious physical injury.” (Order

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to Show Cause, Dkt. No. 16 at 1.) The order identified three prior federal court actions

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(“strikes”) that appeared to count under section 1915(g) and allowed plaintiff an

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opportunity to respond, as required by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005).

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The order also informed Barth he could avoid dismissal by paying the filing fee by the

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United States District Court
Northern District of California

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deadline.
The strikes identified were:

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(1) Barth v. Beard (Beard), No. 2:16-cv-01469-DMG-RAO (C.D. Cal. Feb. 26, 2019)

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(complaint dismissed by a district judge upon the recommendation of a magistrate

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judge,1 because plaintiff failed to state a claim, and additionally one of his four

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claims was Heck-barred on the face of the complaint, and two defendants were

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entitled to sovereign immunity on the face of the complaint);
(2) Barth v. Kernan (Kernan), No. 2:18-cv-04763-DMG-RAO (C.D. Cal. Sept. 10,

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2018) (complaint dismissed with leave to amend because plaintiff failed to state a

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claim, one of his four claims was additionally Heck-barred on the face of the

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complaint, and defendants were entitled to sovereign immunity on the face of the

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complaint; ultimately dismissed because plaintiff failed to cure any defect upon

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amendment); and
(3) Barth v. Muniz (Muniz), No. 3:18-cv-01242-WHO (N.D. Cal. May 31, 2019)

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(amended complaint dismissed for failure to state a claim and because allegations

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That a magistrate judge, rather than a district judge, issued the order is of no moment. See
Hoffmann v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019) (holding that a dismissal
without prejudice by a magistrate judge, issued before the defendant filed a consent to
magistrate jurisdiction, is still a strike under the PLRA.)
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Case 3:20-cv-05137-WHO Document 17 Filed 07/19/21 Page 3 of 3

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were prolix; suit ultimately dismissed after plaintiff failed to cure any defect upon

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amendment).2
DISCUSSION

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Barth has not filed any response to the Order to Show Cause. Therefore, Barth has

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not shown any reason that the restrictions of section 1915(g) should not be imposed. He

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has failed to (i) pay the filing fee; (ii) show that any of the strikes do not qualify under

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section 1915(g); (iii) show that he qualifies for the imminent danger exception; or (iv)

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otherwise show cause why this action should not be dismissed.
Barth’s IFP status is REVOKED. This civil rights action will be dismissed.

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CONCLUSION

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This federal civil rights action is DISMISSED without prejudice to Barth bringing

United States District Court
Northern District of California

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his claims in a new paid complaint. The Clerk shall enter judgment in favor of defendants,

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and close the file.
IT IS SO ORDERED.

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Dated: July 19, 2021
_________________________
WILLIAM H. ORRICK
United States District Judge

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The Court’s dismissal was upheld on appeal: “The district court did not abuse its
discretion in dismissing Barth’s action without prejudice because Barth failed to comply
with the district court’s orders to file an amended complaint that alleged a closely related
set of claims, despite multiple warnings to comply with federal pleading and joinder
requirements.” Barth v. Muniz, No. 3:18-cv-01242-WHO, USCA Memorandum, Dkt. No.
29 at 2.)
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