Gray v. Lewis et al

Filing 3

ORDER TO SHOW CAUSE (Certificate of Service Attached) Show Cause Response due by 6/29/2016. Signed by Judge Phyllis J. Hamilton on 6/3/16. (napS, COURT STAFF) (Filed on 6/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RICKY GRAY,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-02863-PJH
ORDER TO SHOW CAUSE

v.
J. LEWIS, et al.,
Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §
1983. Plaintiff has also filed an application to proceed in forma pauperis.

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The Prison Litigation Reform Act of 1995 (“PLRA”), provides that a prisoner may

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not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 “if the prisoner

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has, on three or more prior occasions, while incarcerated or detained in any facility,

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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

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granted, unless the prisoner is under imminent danger of serious physical injury.” 28

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U.S.C. § 1915(g). The phrase “fails to state a claim on which relief may be granted,” as

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used in § 1915(g), “parallels the language of Federal Rule of Civil Procedure 12(b)(6).”
Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (internal quotation marks omitted).
A case is “frivolous” within the meaning of § 1915(g) if “it is of little weight or importance:
having no basis in law or fact.” Id. (internal quotation marks omitted). The court may
count as strikes dismissals of district court cases as well as dismissals of appeals. See
Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does not get three
frivolous claims and three frivolous appeals before being barred by § 1915(g)). A

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dis
smissal und § 1915(g means th a prison cannot proceed wi his actio as a
der
g)
hat
ner
ith
on

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pauper under § 1915(g), but he still may pursu his claim if he pays the full filin fee at
r
,
l
ue
m
s
ng

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the outset of the action.
e
t
It appe
ears that pla
aintiff has at least thre strikes pu
a
ee
ursuant to § 1915(g):

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i.
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Gray v. Gomez No. 96-5106 (E.D. C April 9, 1996), dismissed as
y
z,
Cal.
,
frivo
olous.

ii.
.

Gray v. Doyle, No. 02-266 (C.D. Ca April 9, 2
y
67
al.
2002), dism
missed as
frivo
olous.

iii.
.

Gray v. Palmer No. 04-83 (C.D. C Nov. 4, 2004), dis
y
r,
354
Cal.
,
smissed for
failu to state a claim.1
ure

iv.
.

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Gray v. Cogdell, No. 09-2
y
2624 (N.D. C Oct. 21 2009), di
Cal.
1,
ismissed
for failure to sta a claim , affirmed o appeal in Gray v. C
f
ate
on
n
Cogdell, No.
09-1
17454 (9th Cir. Dec. 27, 2010).

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United States District Court
Northern District of California

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Plaintif shall show cause by June 29, 2
ff
w
y
2016, why t
this case should not b deemed
be
thr strikes barred and the applica
ree
b
ation to proc
ceed in form pauperi denied. Failure to
ma
is
rep will resu in dismis
ply
ult
ssal.

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IT IS SO ORDER
S
RED.
Da
ated: June 3, 2016
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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\\can
ndoak.cand.circ9
9.dcn\data\users\PJHALL\_psp\2
2016\2016_02863
3_Gray_v_Lewis
s_(PSP)\16-cv-02
2863-PJH-osc-p.docx

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The Ninth Circuit revok plaintiff’ in forma pauperis st
T
ked
’s
tatus on ap
ppeal after f
finding that
he had three strikes relying on the first three c
f
cases discu
ussed above Gray v. Zargoza,
e.
No 10-55983 (9th Cir. Sep. 14, 201
o.
3
S
10).
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UNITED STATES D
DISTRICT C
COURT

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NORTHER DISTRIC OF CAL
N
RN
CT
LIFORNIA

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RICKY GRA
R
AY,

Case No. 16-cv-028
863-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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J. LEWIS, et al.,
.
t
Defendants.

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United States District Court
Northern District of California

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I, the undersigned hereby ce
u
d,
ertify that I am an emp
ployee in th Office of the Clerk,
he
f
S.
C
hern Distric of Californ
ct
nia.
U.S District Court, North
That on June 3, 2016, I SER
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RVED a true and corre copy(ies of the atta
e
ect
s)
ached, by
pla
acing said copy(ies) in a postage paid envelo addres
c
ope
ssed to the person(s) h
hereinafter
list
ted, by depositing said envelope in the U.S. Mail, or by placing sa copy(ies into an
d
y
aid
s)
inte
er-office de
elivery receptacle locat in the C
ted
Clerk's office.

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Ric
cky Gray ID C-32622
D:
2
2-A
A3-04
Co
orcoran State Prison
P. O. Box 715
5071 -2-A3-04
Re
epresa, CA 95671

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ated: June 3, 2016
3
Da

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Susan Y. So
oong
Clerk, United States Dis
d
strict Court
C

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y:________
_________
_________
By
Nichole Peric Deputy C
c,
Clerk to the
e
Honorable P
PHYLLIS J. HAMILTON
N

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