Taylor v. United States Court of Appealf for the Ninth Circuit

Filing 11

ORDER DENYING LEAVE TO PROCEED IN FORMA PAUPERIS; DISMISSING ACTION. Signed by Judge Claudia Wilken on 10/7/2011. (ndr, COURT STAFF) (Filed on 10/7/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JAMES DEAN TAYLOR,

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United States District Court
For the Northern District of California

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Plaintiff,
v.
U.S. COURT OF APPEALS,

No. C 09-05999 CW (PR)
ORDER DENYING LEAVE TO
PROCEED IN FORMA
PAUPERIS; DISMISSING
ACTION

Defendant.
_______________________/

Plaintiff, a state prisoner, filed a pro se civil rights
complaint pursuant to 42 U.S.C. § 1983 and was granted leave to
proceed in forma pauperis (IFP).

Thereafter, the Court reviewed

Plaintiff's prior actions filed in this court and determined that,
under 28 U.S.C. § 1915(g), Plaintiff should not have been granted
IFP status.

Consequently, the Court issued an Order (1) finding

that Plaintiff was not under imminent danger of serious physical
injury, (2) notifying Plaintiff of the reasons why the Court
believes that three of Plaintiff's prior dismissals may be counted
as dismissals for purposes of § 1915(g), (3) revoking the grant of
IFP status in this case, and (4) directing Plaintiff either to pay
the filing fee or show cause why § 1915(g) does not apply.
Plaintiff has filed a response to the Court's Order in which
he argues that the dismissal of his prior action, Taylor v. Bailey,
No. C 05-4953 CW (PR) (N.D. Cal. June 13, 2006), on the ground that
Plaintiff's claims for damages were barred by Heck v. Humphrey, 512
U.S. 477 (1994), should not be counted as a dismissal for purposes
of § 1915(g) because the case was not dismissed for the reason that
his claim was frivolous or malicious but, instead, because he chose
the wrong cause of action.
As was explained to Plaintiff previously, the language of

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§ 1915(g) provides that the dismissal of an action will count as a

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dismissal for purposes of § 1915(g) "if the prisoner has, on 3 or

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more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United

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States that was dismissed on the grounds that it is frivolous,

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malicious, or fails to state a claim upon which relief may be

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granted."

(Emphasis added.)

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Heck makes it clear that a § 1983 "cause of action for damages

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attributable to an unconstitutional conviction or sentence does not

United States District Court
For the Northern District of California

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accrue until the conviction or sentence has been invalidated."

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Heck, 512 U.S. at 489-90 (footnote omitted).

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such claim is not cognizable and therefore should be dismissed.

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See Edwards v. Balisok, 520 U.S. 641, 649 (1997); Butterfield v.

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Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (claim barred by Heck may

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be dismissed under Rule 12(b)(6)); Trimble v. City of Santa Rosa,

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49 F.3d 583, 585 (9th Cir. 1995) (claim barred by Heck may be

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dismissed sua sponte without prejudice under 28 U.S.C. §1915).

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Accordingly, a dismissal under Heck counts as a dismissal for

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failure to state a claim under § 1915(g).

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Consequently, any

Additionally, Plaintiff argues that he should be allowed to

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proceed IFP under the portion of § 1915(g) that provides an

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exception for a prisoner who "is under imminent danger of serious

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physical injury."

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this exception applies to him because every incarcerated prisoner

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is under imminent danger of serious physical injury on a daily

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basis.

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plausible allegation that he is in imminent danger of serious

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physical injury.

§ 1915(g).

Specifically, Plaintiff argues that

Plaintiff's conclusory assertion does not amount to a

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Accordingly, based on the above, Plaintiff's request to
proceed IFP is DENIED.
Further, the case is subject to dismissal because Plaintiff's

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request for relief is without merit.

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issue to the Ninth Circuit a "recommendation" that the Court is

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willing to consider the merits of Plaintiff's second or successive

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petition even though the Ninth Circuit has refused to grant

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Plaintiff's request to proceed with such a petition under 28 U.S.C.

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§ 2244.

Compl. at 8.

Plaintiff asks this Court to

Additionally, Plaintiff asks the Court to

United States District Court
For the Northern District of California

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find that the Ninth Circuit's determination is a violation of

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Plaintiff's civil rights under 42 U.S.C. §§ 1981 and 1983.

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Plaintiff has no statutory or constitutional right to proceed

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with a second or successive habeas petition in federal court, and

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this Court is without the authority to rule on such a petition

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absent permission from the Ninth Circuit.1

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constitutional right is implicated by the Ninth Circuit's denial of

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permission to proceed with a second or successive petition,

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Plaintiff cannot state a claim for relief under § 1981 or § 1983.

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See Felker v. Turpin, 518 U.S. 651, 664 (1996) (restrictions on

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second or successive petitions are well within limits Congress may

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place on scope of writ of habeas corpus).

Further, as no

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Before a second or successive petition may be filed in the
district court, the petitioner must first obtain an order from the
court of appeals authorizing the district court to consider the
petition. See 28 U.S.C. § 2244(b)(3)(A). This gatekeeping function
performed by a court of appeals applies only to a petition filed in
the district court. See Felker v. Turpin, 518 U.S. 651, 662 (1996).
The petitioner still may file an original successive habeas petition
in the United States Supreme Court, in which case the court of
appeals' permission to file is not needed. See id. at 660-61.

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Accordingly, this action is DISMISSED with prejudice.

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The Clerk of the Court shall enter judgment and close the

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file.
IT IS SO ORDERED.
DATED: 10/7/2011
CLAUDIA WILKEN
United States District Judge

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United States District Court
For the Northern District of California

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES DEAN TAYLOR et al,

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United States District Court
For the Northern District of California

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Case Number: CV09-05999 CW

Plaintiff,

CERTIFICATE OF SERVICE

v.
US COURT OF APPEALS et al,
Defendant.

/

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on October 7, 2011, I SERVED a true and correct copy(ies) of the attached, by placing said
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 in the Clerk's office.

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James Dean Taylor K05216
California State Prison - Soledad
P.O. Box 689, C-W 333
Soledad, CA 93960

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Dated: October 7, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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