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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 14-01896 DMR (PR)

CEDRIC BAGBY,

ORDER TO SHOW CAUSE

Plaintiff,
v.

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JUDGE MARGARET A. NAGLE, 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 and frequent litigant in federal court, has filed a pro se civil rights

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

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U.S.C. § 1915. Dkt. 6.

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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

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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),
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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United States District Court
For the Northern District of California

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

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but he still may pursue his claims if he pays the full filing fee at the outset of the action.

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A review of the dismissal orders in Plaintiff's prior prisoner actions in this Court reveals that

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Plaintiff has had at least three 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): (1) Bagby v. President of Bank of America, No. 13-0225 (D.C. Feb. 22, 2013) (civil

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rights action dismissed for failure to state a claim upon which relief may be granted); (2) Bagby v.

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Thaler, No. 2:13-CV-0012 (N.D. Tex. Feb. 13, 2013) (same); and (3) Bagby v. Thaler, No. 12-2001

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(D.C. Dec. 14, 2012) (civil rights complaint dismissed as frivolous). Plaintiff therefore may proceed

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in forma pauperis only if he is seeking relief from a danger of serious physical injury which is

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"imminent" at the time of filing. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001)

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(en banc); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147

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F.3d 715, 717 (8th Cir. 1998); Banos v. O'Guin, 144 F.3d 883, 885 (5th Cir. 1998). He is not.

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Plaintiff's allegations, which seem to concern action by court officials, present no facts relevant to

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his conditions of incarceration and do not establish that physical injury is imminent. Dkt. 1 at 3.

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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 $400.00 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 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

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DONNA M. RYU
United States Magistrate Judge

United States District Court
For the Northern District of California

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P:\PRO-SE\DMR\CR.14\Bagby1896.OSC-1915(g).wpd

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