Greene v. Pelican Bay State Prison et al

Filing 8

ORDER TO SHOW CAUSE Show Cause Response due by 8/7/2012.. Signed by Judge ARMSTRONG on 7/9/12. (lrc, COURT STAFF) (Filed on 7/10/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ORDER TO SHOW CAUSE

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

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United States District Court
For the Northern District of California

No. C 11-06287 SBA (PR)

MARVELLOUS AMIR WARRIOR GREENE,

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Plaintiff, Marvellous Amir Warrior Greene, a.k.a. Marcellus Alexander Greene, a state
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prisoner and frequent litigant in federal court, has filed a pro se civil rights complaint pursuant to 42
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U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (docket no.
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5).
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The Prison Litigation Reform Act of 1995 (PLRA) 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 under 28
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U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
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any facility, 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 granted,
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unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g).
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For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state a
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claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure
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12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little
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weight or importance: having no basis in law or fact," and the word "malicious" refers to a case
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"filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th
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Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as
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strikes for § 1915(g) purposes. See id. Dismissal of an action under § 1915(g) should only occur
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when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant

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

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malicious or failed to state a claim." Id.

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Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g),

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by either the district court or the defendants, but also requires the prisoner to bear the ultimate

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

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allows the Court to raise the § 1915(g) problem sua sponte, but requires the Court to notify the

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

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an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal

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

United States District Court
For the Northern District of California

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but he still may pursue his claims if he pays the full filing fee at the outset of the action.
A review of the dismissal orders in Plaintiff's prior prisoner actions in federal court reveals

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that Plaintiff has had three or more such cases dismissed on the ground that they were frivolous,

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malicious, or failed to state a claim upon which relief may be granted. Plaintiff is now given notice

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that the Court believes the following dismissals may be counted as dismissals for purposes of

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§ 1915(g): Greene v. State of California, No. CIV S-02-2398 FCD KJM P (E.D. Cal. July 11, 2003)

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(civil rights action dismissed as frivolous); Greene v. Reyes, et al., No. CIV S-00-0196 LKK DAD P

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(E.D. Cal. June 6, 2000) (civil rights action dismissed for failure to state a claim upon which relief

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may be granted); Greene v. Pontarolo, et al., No. CIV S-04-2383 FCD DAD P (E.D. Cal. Jan. 23,

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2006) (same); and Greene v. Jones, et al., No. C 08-00677 CRB (PR) (E.D. Cal. Feb. 12, 2009)

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(same). Plaintiff therefore may proceed in forma pauperis only if he is seeking relief from a danger

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of serious physical injury which is "imminent" at the time of filing. See Abdul-Akbar v. McKelvie,

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239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir.

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1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885

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(5th Cir. 1998). He is not.

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In light of these dismissals, and because Plaintiff does not appear to be under imminent

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danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing no later than

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twenty-eight (28) days from the date of this Order why in forma pauperis should not be denied and

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this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). If Plaintiff is so inclined, he
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may avoid dismissal by paying the $350.00 filing fee. In any event, the Court will continue to

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review under § 1915(g) all future actions filed by Plaintiff while he is incarcerated in which he seeks

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in forma pauperis status.

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Failure to either file a timely response or to pay the full filing fee will result in the
dismissal of this action without further notice to Plaintiff.
IT IS SO ORDERED.
DATED: 7/8/12
SAUNDRA BROWN ARMSTRONG
United States District Judge

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United States District Court
For the Northern District of California

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G:\PRO-SE\SBA\CR.11\Greene.6287.OSC1915(g).wpd

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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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MARVELLOUS AMIR WARRIOR GREENE,

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Plaintiff,

CERTIFICATE OF SERVICE

v.

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PELICAN BAY STATE PRISON et al,

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United States District Court
For the Northern District of California

Case Number: CV11-06287 SBA

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 July 10, 2012, 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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Marvellous Amir Warrior Greene K29392
Corcoran State Prison
P.O. Box 3481
Corcoran, CA 93212

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Dated: July 10, 2012

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Richard W. Wieking, Clerk
By: Lisa Clark, Deputy Clerk

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G:\PRO-SE\SBA\CR.11\Greene.6287.OSC1915(g).wpd

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