Greene v. Pelican Bay State Prison et al

Filing 11

ORDER DISMISSING ACTION WITHOUT PREJUDICE. Signed by Judge Saundra Brown Armstrong on 8/4/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 8/4/2014)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 11-06287 SBA (PR)

MARVELLOUS AMIR WARRIOR
5 GREENE,

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v.
PELICAN BAY STATE PRISON R&R
LINE STAFF, et al.,

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Defendants.

United States District Court
For the Northern District of California

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ORDER DISMISSING ACTION
WITHOUT PREJUDICE

Plaintiff,

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Plaintiff, Marvellous Amir Warrior Greene, a.k.a. Marcellus Alexander Greene, a

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state prisoner and frequent litigant in federal court, has filed a pro se civil rights complaint

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pursuant to 42 U.S.C. § 1983. He seeks to proceed in forma pauperis pursuant to 28 U.S.C. §

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1915. Dkt. 5.

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The Prison Litigation Reform Act of 1995 was enacted, and became effective, on

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April 26, 1996. It provides that a prisoner may not bring a civil action in forma pauperis

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under 28 U.S.C. § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated

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

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

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relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g). Only cases within one of these three categories (i.e., frivolous,

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malicious, or fails to state a claim upon which relief may be granted) can be counted as

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strikes for purposes of § 1915(g). Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005)

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(citation omitted). Dismissal of an action under § 1915(g) should only occur when, “after

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careful evaluation of the order dismissing an [earlier] action, and other relevant information,

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the district court determines that the action was dismissed because it was frivolous, malicious

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or failed to state a claim.” Id.

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Andrews holds that the prisoner be given notice of the potential applicability of

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§ 1915(g), by either the district court or the defendants, and that the prisoner bears the

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

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Andrews implicitly allows the Court to raise a § 1915(g) bar sua sponte, but requires the

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Court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g)

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dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing

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the action. See id. at 1120. A dismissal under § 1915(g) means that a prisoner cannot

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proceed with his action as a pauper under § 1915(g), but he may nevertheless pursue his

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claims if he pays the full filing fee at the outset of the action.

United States District Court
For the Northern District of California

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In accordance with Andrews, the Court issued an Order to Show Cause in which it sua

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sponte raised the potential § 1915(g) bar with Plaintiff in this case, and notified him of the

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earlier dismissals it considered to support a § 1915(g) dismissal. Dkt. 8. The Court

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determined that Plaintiff has had at least four prior prisoner actions dismissed on the grounds

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that they were frivolous, malicious, or failed to state a claim upon which relief may be

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granted. See, e.g., Greene v. State of California, No. CIV S-02-2398 FCD KJM P (E.D. Cal.

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July 11, 2003) (civil rights action dismissed as frivolous); Greene v. Reyes, et al., No. CIV S-

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00-0196 LKK DAD P (E.D. Cal. June 6, 2000) (civil rights action dismissed for failure to

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state a claim upon which relief may be granted); Greene v. Pontarolo, et al., No. CIV S-04-

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2383 FCD DAD P (E.D. Cal. Jan. 23, 2006) (same); and Greene v. Jones, et al., No. C 08-

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00677 CRB (PR) (E.D. Cal. Feb. 12, 2009) (same). Because Plaintiff has had at least four

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prior dismissals and was not under imminent danger of serious physical injury at the time of

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filing, the Court ordered Plaintiff to show cause why the four aforementioned dismissals

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should not be counted as “strikes” to support a § 1915(g) dismissal.

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In response to the Order to Show Cause, Plaintiff filed two identical documents

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entitled “Counter to Order to Show Cause Facts ‘Order to Show Cause’,” Dkts. 9, 10, in

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which Plaintiff contests the Court’s finding that he has had four qualifying dismissals under §

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1915(g). Specifically, he argues that the Court should not have counted one of the cases --

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Greene v. Jones, et al., No. C 08-00677 CRB (PR) (E.D. Cal. Feb. 12, 2009) -- as a
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qualifying dismissal because it has been reopened and was an “active case [in which he] was

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granted leave to amend . . . .” Dkt. 9 at 2. A review of the docket of that case reveals that it

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has indeed been reopened; therefore, the Court finds that it no longer qualifies as a qualifying

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dismissal. See Greene v. Jones, et al., No. C 08-00677 CRB (PR) (E.D. Cal. March 13,

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2013) (Order Vacating Judgment and Reopening Case).

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The above notwithstanding, the Court finds that there are three other qualifying

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dismissals, of which Plaintiff only contests the dismissal in Greene v. Pontarolo, et al., No.

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CIV S-04-2383 FCD DAD P (E.D. Cal. Jan. 23, 2006). Dkt. 9 at 3. Plaintiff does not claim

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that this case was dismissed erroneously on the ground the complaint failed to state a

United States District Court
For the Northern District of California

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cognizable claim for relief. Nor does Plaintiff dispute the notion that a case dismissed for

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“failure to state a cognizable claim for relief” is a qualifying dismissal under § 1915(g). See

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Andrews, 398 F.3d at 1117 n.3, 1121 (finding dismissal “for failure to state a claim”

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constitutes qualifying dismissal under § 1915(g)). Rather, Plaintiff merely argues that he

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"does not recall" the case.

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This Court has reviewed the magistrate judge’s findings and recommendations in

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Pontarolo, which were adopted in full in the district court’s Dismissal Order. The magistrate

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judge's recommendation states, “Plaintiff’s complaint fails to state any federal claim upon

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which relief can be granted, and it does not appear that plaintiff can cure the defects of any

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federal claim. The undersigned will recommend that this action be dismissed.” See Dkt. 7 in

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Case No. CIV S-04-2383 FCD DAD P at 8. On January 23, 2006, the District Court adopted

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the recommendation, finding upon which relief can be granted.” See Dkt. 10 in Case No.

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CIV S-04-2383 FCD DAD P at 2. Therefore, irrespective of whether Plaintiff has any

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recollection of that case, the Court has now independently confirmed that Greene v.

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Pontorolo, Case No. CIV S-04-2383 FCD DAD P, constitutes a qualifying dismissal under

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§ 1915(g).

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Plaintiff also argues that § 1915(g) is unconstitutional. Dkt. 9 at 2. The Ninth Circuit

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has rejected this argument. See Rodriguez v. Cook, 169 F.3d 1176, 1180-82 (9th Cir. 1999)

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(holding § 1915(g) does not violate due process, equal protection, Ex Post Facto Clause or
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separation of powers).
CONCLUSION

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In sum, Plaintiff was given the opportunity to be heard on the question of whether the

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instant action is subject to dismissal under § 1915(g). See Andrews, 398 F.3d at 1120-21.

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Although this Court had originally listed four qualifying dismissals in its Order to Show

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Cause, only three prior dismissals are needed to qualify under § 1915(g). Therefore, even

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though Case No. C 08-00677 CRB (PR) no longer constitutes as a qualifying dismissal,

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Plaintiff’s three other dismissals in Case Nos. S-04-2383 FCD DAD P, S-02-2398 FCD KJM

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P and S-00-0196 LKK DAD P may be counted as dismissals for purposes of § 1915(g).

United States District Court
For the Northern District of California

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Therefore, Plaintiff’s responses to the Court’s Order to Show Cause fail to establish that §

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1915(g) does not apply. Accordingly,

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IT IS HEREBY ORDERED THAT:

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Plaintiff’s request to proceed in forma pauperis is DENIED. Dkt. 5.

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2.

This action is hereby DISMISSED without prejudice to Plaintiff’s refiling his

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claims in a new case in which he pays the full filing fee. See 28 U.S.C. § 1915(g).
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The Clerk of the Court shall enter judgment, terminate all pending motions, and

close the file.

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This Order terminates Docket no. 5.

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IT IS SO ORDERED.

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DATED: August 4, 2014
SAUNDRA BROWN ARMSTRONG
United States District Judge

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P:\PRO-SE\SBA\CR.11\Greene.6287.dism1915(g).wpd

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