Harris v. Mc Call et al

Filing 28

ORDER GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS AND DISMISSING COMPLAINT. ***Civil Case Terminated.*** Signed by Judge Claudia Wilken on 10/3/2014. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 10/3/2014)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4

Plaintiff,

5
6
7

Case No.: C 14-0952 CW (PR)

MARVIN HARRIS,

v.

ORDER GRANTING DEFENDANTS'
MOTION TO REVOKE PLAINTIFF'S IN
FORMA PAUPERIS STATUS AND
DISMISSING COMPLAINT

J. McCALL, et al.,

8

Defendants.

9

United States District Court
For the Northern District of California

10

Plaintiff, a state prisoner incarcerated at New Folsom State

11

Prison, has filed a pro se civil rights action pursuant to 42

12

U.S.C. § 1983, alleging the violation of his constitutional rights

13

by employees at Salinas Valley State Prison, where he was formerly

14

incarcerated.

15

Service.

16

pauperis (IFP).

17
18

On April 4, 2014, the Court issued an Order of

The Court granted Plaintiff's motion to proceed in forma
On June 11, 2014, Defendants filed a motion,

under 28 U.S.C. § 1915(g), to revoke Plaintiff's IFP status.
motion is fully briefed.

The

For the reasons discussed below, this

motion is granted.
19
20
21
22
23
24
25
26
27
28

DISCUSSION
I. Legal Standard
A prisoner may not bring a civil action IFP under 28 U.S.C.
§ 1915 "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).

For purposes of a dismissal that may count under § 1915(g),

1

the phrase "fails to state a claim on which relief may be granted"

3

parallels the language of Federal Rule of Civil Procedure 12(b)(6)

4

and carries the same interpretation, the word "frivolous" refers

5

to a case that is "'of little weight or importance: having no

6

basis in law or fact,'" and the word "malicious" refers to a case

7

"filed with the 'intention or desire to harm another.'"

8

v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted).

9

Only cases within one of these three categories can be counted as

10
United States District Court
For the Northern District of California

2

strikes for § 1915(g) purposes, so the mere fact that a plaintiff

11

has filed many cases does not alone warrant dismissal under

12

§ 1915(g).

13

should only occur when, "after careful evaluation of the order

14

dismissing an [earlier] action, and other relevant information,

15

the district court determines that the action was dismissed

16

because it was frivolous, malicious or failed to state a claim."

17

Id.

18

II. Plaintiff's Strikes

Id.

Andrews

Rather, dismissal of an action under § 1915(g)

19

Defendants request judicial notice of court records from four

20

prior cases that Plaintiff brought in federal court: (1) Harris v.

21

Edmonds, No. CV-F-00-5857 OWW LJO (E.D. Cal.) (dismissed on Nov.

22

27, 2000); (2) Harris v. Hickey, No. CV-F-97-5411 OWW HGB (E.D.

23

Cal.) (dismissed on Aug. 8, 1997); (3) Harris v. Hickey, No. CV-F-

24

97-5186 REC-HGB (E.D. Cal.) (dismissed on Jul. 30, 1997); and

25

(4) Harris v. Kenwood, No. 2:11-cv-2388-WBS-CMK (E.D. Cal. Jan. 6,

26

2014).

27

GRANTED.

28

631 F.2d 118, 119 (9th Cir. 1980)(court may take judicial notice

The request for judicial notice of these court records is
See Fed. R. Evid. 201(b)(2); United States v. Wilson,

2

1

of public records, including its own records and records of other

2

courts).

3

In Harris v. Kenwood, the Eastern District of California

4

found that Plaintiff filed three previous lawsuits that qualify as

5

strikes under 28 U.S.C. § 1915(g) and, therefore, denied his

6

request to proceed IFP.

7

See Req. Judicial Not., Ex. D.

The Court reviews the three cases noted in Kenwood, and finds
that they qualify as strikes.

9

were dismissed on the grounds that Plaintiff failed to state a

10
United States District Court
For the Northern District of California

8

claim upon which relief could be granted and failed to satisfy

11

pleading requirements.

12

qualifies as a strike under § 1915(g).

13

The claims in Harris v. Edmonds

See Req. Judicial Not., Ex. A.

This

The claims in Harris v. Hickey, No. CV-F-97-5411 OWW HGB,

14

were dismissed as frivolous.

15

qualifies as a strike under § 1915(g).

16

Harris v. Hickey, No. CV-F-97-5186 REC-HGB, were dismissed as

17

frivolous.

18

a strike under § 1915(g).

19

See Req. Judicial Not., Ex. B.

This

Likewise, the claims in

See Req. Judicial Not., Ex. C.

This also qualifies as

Based on the foregoing, Defendants have shown that Plaintiff

20

has suffered at least three “strikes” under § 1915(g).

In

21

opposition, Plaintiff does not contest that any of the “strikes”

22

at issue were properly dismissed.

23

paid the filing fee under Title 15, section 3160 of the California

24

Code of Regulations.

25

a civil action in state court is charged filing fees against his

26

prison trust account but, if he is without sufficient funds at the

27

time of the charge, he shall not be charged for any remaining

28

balance.

Instead, he argues that he has

Section 3160 provides that an inmate filing

This argument fails because section 3160 applies to
3

1

state court filings, not to this federal action.

2

Plaintiff filed a motion to proceed IFP in this case, which the

3

Court granted.

4

III. Imminent Danger Exception

5

Further,

The plain language of the imminent danger clause in § 1915(g)

6

indicates that "imminent danger" is to be assessed at the time of

7

filing, not at the time of the alleged constitutional violations.

8

Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en

9

banc).

“Imminent danger” may include an ongoing danger of serious

United States District Court
For the Northern District of California

10

physical injury.

11

1998).

12

danger or subject to an ongoing danger of serious physical injury

13

at the time he filed this action.

14

Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.

Plaintiff has the burden of proving that he is in imminent

In his complaint, Plaintiff alleges that Defendants

15

retaliated against him by taking some of his property, altering

16

his criminal record and falsely accusing him.

17

allegations demonstrate that Plaintiff was under imminent danger

18

or subject to an ongoing danger of serious bodily injury at the

19

time he filed his complaint.

20

contrary.

21

None of these

Plaintiff does not argue to the

Based on the foregoing, Plaintiff is not entitled to the

22

exception under § 1915(g), and is barred from proceeding IFP in

23

this action.

24

is granted.

Defendants' motion to revoke Plaintiff's IFP status

25

When IFP status is revoked pursuant to § 1915(g), the proper

26

procedure is to dismiss the action without prejudice to re-filing

27

with payment of fees at the time the action is re-filed.

28

Tienerney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1998) (under
4

See

1

§ 1915(g), case was properly dismissed without prejudice to re-

2

filing with payment of filing fees).
CONCLUSION

3
4

Based on the foregoing, the Court orders as follows:

5

1. Defendants' motion for revocation of Plaintiff's IFP

6

status is granted.

7

2014 (Doc. No. 24), granting Plaintiff leave to proceed IFP, is

8

VACATED and Plaintiff's IFP status is REVOKED.

9

United States District Court
For the Northern District of California

10
11
12
13

Doc. No. 19.

The Order entered on July 9,

2. This case is dismissed without prejudice to Plaintiff's
re-filing it with payment of the $400 filing fee.
3. The Clerk of the Court shall terminate all motions and
close the file.
IT IS SO ORDERED.

14
15

Dated:

October 3, 2014
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

16
17
18
19
20
21
22
23
24
25
26
27
28
5