Bagby v. Nagle et al

Filing 7

ORDER TO SHOW CAUSE. Signed by Judge Donna M. Ryu on 6/16/14. (Attachments: # 1 Certificate/Proof of Service)(jjoS, COURT STAFF) (Filed on 6/16/2014)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 7 No. C 14-01896 DMR (PR) CEDRIC BAGBY, ORDER TO SHOW CAUSE Plaintiff, v. 8 JUDGE MARGARET A. NAGLE, et al., 9 Defendants. / United States District Court For the Northern District of California 10 11 Plaintiff, a state prisoner and frequent litigant in federal court, has filed a pro se civil rights 12 complaint pursuant to 42 U.S.C. § 1983. He also seeks to proceed in forma pauperis pursuant to 28 13 U.S.C. § 1915. Dkt. 6. 14 15 16 Plaintiff has consented to magistrate judge jurisdiction, dkt. 1 at 4, and this matter has been assigned to the undersigned Magistrate Judge. The Prison Litigation Reform Act of 1995 ("PLRA") was enacted, and became effective, on 17 April 26, 1996. It provides that a prisoner may not bring a civil action in forma pauperis under 28 18 U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in 19 any facility, brought an action or appeal in a court of the United States that was dismissed on the 20 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 21 unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). 22 For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state a 23 claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 24 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "of little 25 weight or importance: having no basis in law or fact," and the word "malicious" refers to a case 26 "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th 27 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 28 strikes for § 1915(g) purposes. See id. Dismissal of an action under § 1915(g) should only occur 1 when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant 2 information, the district court determines that the action was dismissed because it was frivolous, 3 malicious or failed to state a claim." Id. 4 Andrews requires that the prisoner be given notice of the potential applicability of § 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the ultimate 6 burden of persuasion that § 1915(g) does not bar pauper status for him. Id. Andrews implicitly 7 allows the Court to raise the § 1915(g) problem sua sponte, but requires the Court to notify the 8 prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the prisoner 9 an opportunity to be heard on the matter before dismissing the action. See id. at 1120. A dismissal 10 United States District Court For the Northern District of California 5 under § 1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915(g), 11 but he still may pursue his claims if he pays the full filing fee at the outset of the action. 12 A review of the dismissal orders in Plaintiff's prior prisoner actions in this Court reveals that 13 Plaintiff has had at least three such cases dismissed on the ground that they were frivolous, 14 malicious, or failed to state a claim upon which relief may be granted. Plaintiff is now given notice 15 that the Court believes the following dismissals may be counted as dismissals for purposes of 16 § 1915(g): (1) Bagby v. President of Bank of America, No. 13-0225 (D.C. Feb. 22, 2013) (civil 17 rights action dismissed for failure to state a claim upon which relief may be granted); (2) Bagby v. 18 Thaler, No. 2:13-CV-0012 (N.D. Tex. Feb. 13, 2013) (same); and (3) Bagby v. Thaler, No. 12-2001 19 (D.C. Dec. 14, 2012) (civil rights complaint dismissed as frivolous). Plaintiff therefore may proceed 20 in forma pauperis only if he is seeking relief from a danger of serious physical injury which is 21 "imminent" at the time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) 22 (en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 23 F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). He is not. 24 Plaintiff's allegations, which seem to concern action by court officials, present no facts relevant to 25 his conditions of incarceration and do not establish that physical injury is imminent. Dkt. 1 at 3. 26 In light of these dismissals, and because Plaintiff does not appear to be under imminent 27 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing no later than 28 twenty-eight (28) days from the date of this Order why in forma pauperis should not be denied and 2 1 this action should not be dismissed pursuant to 28 U.S.C. § 1915(g). If Plaintiff is so inclined, he 2 may avoid dismissal by paying the $400.00 filing fee. In any event, the Court will continue to 3 review under § 1915(g) all future actions filed by Plaintiff while he is incarcerated in which he seeks 4 in forma pauperis status. 5 6 7 8 Failure to file a timely response or failure to pay the full filing fee in will result in the dismissal of this action without further notice to Plaintiff. IT IS SO ORDERED. Dated: June 16, 2014 9 DONNA M. RYU United States Magistrate Judge United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 P:\PRO-SE\DMR\CR.14\Bagby1896.OSC-1915(g).wpd 3

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