Lewis v. California Department of Corrections

Filing 8

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 11/21/08. (lrc, COURT STAFF) (Filed on 11/21/2008)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA REGINALD T. LEWIS, ) ) Plaintiff, ) ) v. ) ) CALIFORNIA DEPARTMENT OF ) CORRECTIONS, ) ) Defendant. ) ________________________________ ) REGINALD T. LEWIS, ) ) Plaintiff, ) ) v. ) ) CALIFORNIA DEPARTMENT OF ) CORRECTIONS, ) ) Defendant. ) ________________________________ ) No. C 08-3619 SBA (PR) ORDER OF DISMISSAL

No. C 08-4363 SBA (PR) ORDER OF DISMISSAL

Plaintiff, a state prisoner and frequent litigant in this Court, has filed two pro se civil rights complaints pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in each case. On April 26, 1996, the Prison Litigation Reform Act of 1995 (PLRA) was enacted and became effective. The PLRA provides that a prisoner may not bring a civil action or appeal a civil judgment in forma pauperis "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). The only exception to this bar is when a plaintiff is under imminent danger of serious physical injury. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998).

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In an Order dated October 20, 2008, the Court sua sponte raised the § 1915(g) problem in the

2 instant cases and notified Plaintiff of the earlier dismissals it considered to support a § 1915(g) 3 dismissal. See Andrews v. King, 398 F.3d 1113, 1120-21 (9th Cir. 2005) (allowing the plaintiff an 4 opportunity to be heard on the matter before dismissing the action under § 1915(g)). The Court 5 determined that Plaintiff has had three prior prisoner actions dismissed on the grounds that they were 6 frivolous, malicious, or failed to state a claim upon which relief may be granted. See, e.g., (1) Lewis 7 v. Santa Clara Bd. of Supervisors, No. C 01-2485 SBA (PR) (N.D. Cal. Jan. 17, 2006) (civil rights 8 action dismissed for failure to state a claim); (2) Lewis v. Santa Clara Bd. of Supervisors, No. C 029 3373 SBA (PR) (N.D. Cal. Aug. 13, 2002) (civil rights complaint dismissed as duplicative); and 10 (3) Lewis v. CDC, No. C 02-3499 SBA (PR) (N.D. Cal. Aug. 13, 2002) (same). Because Plaintiff United States District Court For the Northern District of California 11 has had three prior dismissals and is not under imminent danger of serious physical injury, the Court 12 ordered Plaintiff to show cause why the three aforementioned dismissals should not be counted as 13 "strikes" to support a § 1915(g) dismissal. The Court informed Plaintiff that if he failed to file a 14 response to the order to show cause within thirty days, this action would be dismissed without 15 prejudice. 16 More than thirty days have passed, and Plaintiff has not responded to the Court's October 20,

17 2008 Order in both cases.1 Accordingly, these two actions are hereby DISMISSED without prejudice 18 to Plaintiff's refiling his claims in future actions in which he pays the full filing fee. Plaintiff's 19 applications for in forma pauperis status in both cases are DENIED. 20 The Court has rendered its final decision on these matters; therefore, this Order

21 TERMINATES Plaintiff's two cases. The Clerk of the Court shall terminate all pending motions and 22 close the files. 23 IT IS SO ORDERED. _______________________________ SAUNDRA BROWN ARMSTRONG United States District Judge

24 DATED: 11/21/08 25 26 27

In Case No. C 08-4363 SBA (PR), after the October 20, 2008 Order was issued, Plaintiff filed copies of his certificate of funds and prisoner trust account statement as well as a document entitled, 28 "Request for Trial." Plaintiff's filings cannot be considered responses to the Court's October 20, 2008 Order because they fail to address how § 1915(g) does not apply. P:\PRO-SE\SBA\CR.08\Lewis3619&4363.1915g-dismissal.frm 2

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UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 REGINALD T. LEWIS, 5 6 v. Plaintiff, Case Number: CV08-03619 SBA CERTIFICATE OF SERVICE

7 CALIFORNIA DEPARTMENT OF CORRECTIONS et al, 8 Defendant. 9 10 United States District Court For the Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District 11 Court, Northern District of California. 12 That on November 21, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said 13 copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located 14 in the Clerk's office. 15 16 Reginald T. Lewis P95159 17 California State Prison - San Quentin San Quentin, CA 94964 18 Dated: November 21, 2008 19 20 21 22 23 24 25 26 27 28

Richard W. Wieking, Clerk By: LISA R CLARK, Deputy Clerk

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