Harris v. Mc Call et al
Filing
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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)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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Plaintiff,
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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.,
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Defendants.
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United States District Court
For the Northern District of California
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Plaintiff, a state prisoner incarcerated at New Folsom State
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Prison, has filed a pro se civil rights action pursuant to 42
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U.S.C. § 1983, alleging the violation of his constitutional rights
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by employees at Salinas Valley State Prison, where he was formerly
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incarcerated.
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Service.
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pauperis (IFP).
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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.
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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),
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the phrase "fails to state a claim on which relief may be granted"
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parallels the language of Federal Rule of Civil Procedure 12(b)(6)
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and carries the same interpretation, the word "frivolous" refers
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to a case that is "'of little weight or importance: having no
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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.'"
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v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted).
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Only cases within one of these three categories can be counted as
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United States District Court
For the Northern District of California
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strikes for § 1915(g) purposes, so the mere fact that a plaintiff
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has filed many cases does not alone warrant dismissal under
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§ 1915(g).
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should only occur when, "after careful evaluation of the order
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dismissing an [earlier] action, and other relevant information,
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the district court determines that the action was dismissed
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because it was frivolous, malicious or failed to state a claim."
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Id.
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II. Plaintiff's Strikes
Id.
Andrews
Rather, dismissal of an action under § 1915(g)
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Defendants request judicial notice of court records from four
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prior cases that Plaintiff brought in federal court: (1) Harris v.
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Edmonds, No. CV-F-00-5857 OWW LJO (E.D. Cal.) (dismissed on Nov.
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27, 2000); (2) Harris v. Hickey, No. CV-F-97-5411 OWW HGB (E.D.
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Cal.) (dismissed on Aug. 8, 1997); (3) Harris v. Hickey, No. CV-F-
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97-5186 REC-HGB (E.D. Cal.) (dismissed on Jul. 30, 1997); and
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(4) Harris v. Kenwood, No. 2:11-cv-2388-WBS-CMK (E.D. Cal. Jan. 6,
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2014).
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GRANTED.
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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,
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of public records, including its own records and records of other
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courts).
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In Harris v. Kenwood, the Eastern District of California
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found that Plaintiff filed three previous lawsuits that qualify as
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strikes under 28 U.S.C. § 1915(g) and, therefore, denied his
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request to proceed IFP.
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See Req. Judicial Not., Ex. D.
The Court reviews the three cases noted in Kenwood, and finds
that they qualify as strikes.
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were dismissed on the grounds that Plaintiff failed to state a
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United States District Court
For the Northern District of California
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claim upon which relief could be granted and failed to satisfy
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pleading requirements.
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qualifies as a strike under § 1915(g).
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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,
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were dismissed as frivolous.
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qualifies as a strike under § 1915(g).
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Harris v. Hickey, No. CV-F-97-5186 REC-HGB, were dismissed as
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frivolous.
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a strike under § 1915(g).
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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
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has suffered at least three “strikes” under § 1915(g).
In
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opposition, Plaintiff does not contest that any of the “strikes”
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at issue were properly dismissed.
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paid the filing fee under Title 15, section 3160 of the California
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Code of Regulations.
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a civil action in state court is charged filing fees against his
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prison trust account but, if he is without sufficient funds at the
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time of the charge, he shall not be charged for any remaining
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balance.
Instead, he argues that he has
Section 3160 provides that an inmate filing
This argument fails because section 3160 applies to
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state court filings, not to this federal action.
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Plaintiff filed a motion to proceed IFP in this case, which the
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Court granted.
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III. Imminent Danger Exception
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Further,
The plain language of the imminent danger clause in § 1915(g)
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indicates that "imminent danger" is to be assessed at the time of
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filing, not at the time of the alleged constitutional violations.
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Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en
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banc).
“Imminent danger” may include an ongoing danger of serious
United States District Court
For the Northern District of California
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physical injury.
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1998).
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danger or subject to an ongoing danger of serious physical injury
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at the time he filed this action.
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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
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retaliated against him by taking some of his property, altering
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his criminal record and falsely accusing him.
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allegations demonstrate that Plaintiff was under imminent danger
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or subject to an ongoing danger of serious bodily injury at the
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time he filed his complaint.
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contrary.
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None of these
Plaintiff does not argue to the
Based on the foregoing, Plaintiff is not entitled to the
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exception under § 1915(g), and is barred from proceeding IFP in
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this action.
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is granted.
Defendants' motion to revoke Plaintiff's IFP status
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When IFP status is revoked pursuant to § 1915(g), the proper
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procedure is to dismiss the action without prejudice to re-filing
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with payment of fees at the time the action is re-filed.
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Tienerney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1998) (under
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See
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§ 1915(g), case was properly dismissed without prejudice to re-
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filing with payment of filing fees).
CONCLUSION
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Based on the foregoing, the Court orders as follows:
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1. Defendants' motion for revocation of Plaintiff's IFP
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status is granted.
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2014 (Doc. No. 24), granting Plaintiff leave to proceed IFP, is
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VACATED and Plaintiff's IFP status is REVOKED.
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United States District Court
For the Northern District of California
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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.
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Dated:
October 3, 2014
________________________
CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE
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