Magee v. Cantil-Sakauye et al

Filing 3

ORDER TO SHOW CAUSE - Show Cause Response due by 9/1/2021. 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 3:21-cv-05432-WHO Document 3 Filed 07/19/21 Page 1 of 3

1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF CALIFORNIA

3

RUCHELL C. MAGEE,

4

Case No. 21-cv-05432-WHO (PR)

Plaintiff,

5

ORDER TO SHOW CAUSE

v.

6

CANTIL-SAKAUYE, et al.,

7

Defendants.

8
9

Plaintiff Ruchell Cinque Magee, a state prisoner and frequent litigant in federal

10

United States District Court
Northern District of California

11

court, has filed this federal civil rights action under 42 U.S.C. § 1983 along with a motion

12

to proceed in forma pauperis (IFP) under 28 U.S.C. § 1915.1 Magee is ordered to show

13

cause on or before September 1, 2021 why 28 U.S.C. § 1915(g) does not bar pauper

14

status in this action.
A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C.

15
16

§ 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in

17

any facility, brought an action or appeal in a court of the United States that was dismissed

18

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

19

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

20

28 U.S.C. § 1915(g). Relying on the statute’s command that “in no event” may such a

21

prisoner proceed, the Ninth Circuit explained that this bar is triggered by a prisoner’s

22

history of filing frivolous litigation rather than by the merits of the current action. See El-

23

Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original).
Under the law of this circuit, plaintiff must be afforded an opportunity to persuade

24
25

the Court that section 1915(g) does not bar pauper status for him. See Andrews v. King,

26
27
28

1

In his complaint, Magee alleges Tani Cantil-Sakauye, the Chief Justice of California,
hindered his access to the courts. He also alleges Gavin Newsom, the Governor of
California, refused to acknowledge Magee’s applications for a pardon and concealed
evidence of false convictions. (Compl., Dkt. No. 1 at 4, 7.)

Case 3:21-cv-05432-WHO Document 3 Filed 07/19/21 Page 2 of 3

1

398 F.3d 1113, 1120 (9th Cir. 2005). Andrews requires that the prisoner be given notice of

2

the potential applicability of section 1915(g), by either the district court or the defendants,

3

but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g)

4

does not bar pauper status for him. Id. Andrews implicitly allows the Court to raise sua

5

sponte the section 1915(g) problem, but requires the Court to notify the prisoner of the

6

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

7

an opportunity to be heard on the matter before dismissing the action. Id. A dismissal

8

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

9

under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the

10

United States District Court
Northern District of California

11

outset of the action.
Here, Magee has had at least three prior prisoner actions or appeals dismissed

12

by a federal court on the grounds that they are frivolous, malicious, or that they failed to

13

state a claim upon which relief may be granted:

14

(1) Magee v. Scott, No. 05-CV-348 AWI LJO (E.D. Cal. Mar. 6, 2016) (order

15

adopting report and recommendation dismissing case for failing to file amended complaint

16

and failing to state a cognizable claim);

17

(2) Magee v. Bravo, No. 03-CV-6764 LJO WMW (E.D. Cal. July 23, 2007) (order

18

adopting report and recommendation dismissing case for failing to state a cognizable

19

claim);

20

(3) Magee v. Ortega, No. 00-CV-1512 GEB GGH (E.D. Cal. Apr. 22, 2002) (order

21

adopting report and recommendation dismissing case for failing to file amended

22

complaint);

23
24
25
26
27
28

(4) Magee v. Meyer, No. 95-CV-03855 DLJ (PR) (N.D. Cal. Mar. 27, 1996)
(dismissed as malicious);
(5) Magee v. Jensen, No. 95-CV-2520 DLJ (PR) (N.D. Cal. July 20, 1995)
(dismissed as malicious and duplicative);
(6) Magee v. Reardon, No. 94-CV-3815 DLJ (PR) (N.D. Cal. March 17, 1995)
(dismissed as malicious);
2

Case 3:21-cv-05432-WHO Document 3 Filed 07/19/21 Page 3 of 3

1
2
3
4
5
6
7
8

(7) Magee v. Jensen, No. C 94-CV-2711 DLJ, (N.D. Cal. Aug. 31, 1994) (dismissed
as frivolous);
(8) Magee v. Foreman Federal Grand Jury, No. 94-CV-4298 DLJ (PR) (N.D. Cal.
March 16, 1995) (dismissed as malicious);
(9) Magee v. Romines, No. 93-CV-3638 DLJ (PR) (N.D. Cal. June 9, 1994)
(dismissed for failing to state a cognizable claim); and
(10) Magee v. Helsel, No. C 93-CV-3507 DLJ (N.D. Cal. June 9, 1994) (dismissal
as duplicative of claims adjudicated in a prior suit).
In light of these dismissals, and because Magee does not appear to be under

10

imminent danger of serious physical injury, the Court now orders him to show cause why

11

United States District Court
Northern District of California

9

IFP status should not be denied and these actions should not be dismissed pursuant to

12

28 U.S.C. § 1915(g).

13

Magee’s response to this order to show cause is due no later than September 1,

14

2021. The response must clearly be labeled “RESPONSE TO ORDER TO SHOW

15

CAUSE.” In the alternative to showing cause why this action should not be dismissed,

16

Magee may avoid dismissal by paying the full filing fee of $402.00 by the deadline.

17

Failure to file a response by September 1, 2021, or failure to pay the full filing fee

18

by that date, will result in the dismissal of this action without prejudice to plaintiff bringing

19

his claims in a new paid complaint.

20
21

IT IS SO ORDERED.
Dated: July 19, 2021
_________________________
WILLIAM H. ORRICK
United States District Judge

22
23
24
25
26
27
28
3