Lopez v. Olson et al

Filing 10

ORDER TO SHOW CAUSE. Signed by Judge Phyllis J. Hamilton on 6/2/17. Show Cause Response due by 6/26/2017. (kcS, COURT STAFF) (Filed on 6/2/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ANDREW R. LOPEZ,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-02087-PJH
ORDER TO SHOW CAUSE

v.
G. OLSON, et al.,
Defendants.

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Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. §

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1983. Plaintiff has also filed an application to proceed in forma pauperis. Plaintiff alleges

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that he is receiving inadequate medical care at Pelican Bay State Prison. He states that

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his prescription for artificial tears was renewed at half the dosage and his Gabapentin

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pain medication was reduced and eventually phased out. Plaintiff argues that medical

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staff will only provide opioid pain medication in very rare cases. Plaintiff states he is in

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severe pain and has trouble sleeping and performing daily activities.

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The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996,

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provides that a prisoner may not bring a civil action or appeal a civil judgment under 28

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U.S.C. § 1915 “if the prisoner has, on three or more prior occasions, while incarcerated or

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detained in any facility, brought an action or appeal in a court of the United States that

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was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

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which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g). The phrase “fails to state a claim on which relief

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may be granted,” as used in § 1915(g), “parallels the language of Federal Rule of Civil

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Procedure 12(b)(6).” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (internal

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quotation marks omitted). A case is “frivolous” within the meaning of § 1915(g) if “it is of

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little weight or importance: having no basis in law or fact.” Id. (internal quotation marks

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omitted). Further, because § 1915(g) is a procedural rule that does not raise retroactivity

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concerns, cases dismissed before the effective date of § 1915(g) may be counted as

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qualifying dismissals or “strikes.” See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th

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Cir. 1997). A court may count as strikes dismissals of district court cases as well as

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dismissals of appeals. See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999)

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(prisoner does not get three frivolous claims and three frivolous appeals before being

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barred by § 1915(g)). A dismissal under § 1915(g) means that a prisoner cannot proceed
with his action as a pauper under § 1915(g), but he still may pursue his claim if he pays

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United States District Court
Northern District of California

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the full filing fee at the outset of the action.

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It appears that plaintiff has at least three strikes pursuant to § 1915(g). In Lopez v.

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Yamat, No. 07-cv-1765 FRZ (E.D. Cal. Jan. 23, 2009), the court dismissed plaintiff’s

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action for his repeated failure to comply with Rules 8 and 10 of the Federal Rules of Civil

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Procedure. The Ninth Circuit affirmed the dismissal for failing to comply with Rule 8. See

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Docket No. 33. The district court dismissal constitutes a strike as frivolous and for failure

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to state a claim.

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In Lopez v. Cate, No. 11-cv-0806 MCE KJN (E.D. Cal. Sep. 29, 2011), the court

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dismissed plaintiff’s claims as barred by the statute of limitations. The Ninth Circuit did

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not allow the appeal to proceed because it was so insubstantial as to not warrant further

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review. Docket No. 29. The statute of limitations dismissal by the district court

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constitutes a strike. See Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015) (affirming the

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strike finding for a case that was dismissed as untimely).

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In Lopez v. Beard, No. 13-cv-1556 LJO GSA (E.D. Cal. May 22, 2015), the court

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dismissed plaintiff’s claims for failure to state a claim. Plaintiff challenged his denial of

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parole by the Board of Parole Hearings and the rules and regulations that were

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employed. The court noted that plaintiff could file a habeas petition to challenge the

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denial so dismissed the case without prejudice. However, court records indicate that
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pla
aintiff had already filed many habeas petition including a petition challenging the same
a
d
ns
g
g
e

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parole denial. See Lope v. Brown No. 12-cv
.
ez
n,
v-1172 AWI BAM (E.D Cal. Oct. 9, 2012).
I
D.

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nied the pet
tition on the merits app
e
proximately one year before plain filed
y
ntiff
The court den

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the civil rights action. Th Ninth Circuit did no allow the appeal in the civil righ action to
e
s
he
ot
hts
o

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pro
oceed beca
ause it was so insubsta
antial as to not warran further re
nt
eview. Dock No. 21
ket

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in Lopez v. Be
L
eard, No. 13-cv-1556 LJO GSA. Therefore, the district court dism
,
missal

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constitutes a strike for fa
ailure to state a claim.

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United States District Court
Northern District of California

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ff
w
y
2017, why t
this case should not b deemed
be
Plaintif shall show cause by June 26, 2
ree
b
ation to proc
ceed in form pauperi denied. Failure to
ma
is
thr strikes barred and the applica
rep will resu in dismis
ply
ult
ssal
IT IS SO ORDER
S
RED.
Da
ated: June 2, 2017
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PH
HYLLIS J. H
HAMILTON
N
Un
nited States District Ju
s
udge

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2017\2017_02087
7_Lopez_v_Olso
on_(PSP)\17-cv-02087-PJH-osc_
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UNITED STATES D
D
DISTRICT C
COURT

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NORTHER DISTRIC OF CALI
RN
CT
IFORNIA

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ANDREW R. LOPEZ,
A
.

Case No. 1
17-cv-02087
7-PJH

Plaintiff,
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v.

CERTIFIC
CATE OF S
SERVICE

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G. OLSON, et al.,
G
e
s.
Defendants

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United States District Court
Northern District of California

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I, the un
ndersigned, hereby certify that I am an employe in the Offi of the Clerk, U.S.
ee
ice
Dis
strict Court, Northern Di
istrict of Cal
lifornia.

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That on June 2, 201 I SERVE a true and correct cop
n
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ED
d
py(ies) of the attached, b placing
by
said copy(ies) in a postage paid envelo addressed to the pers
i
ope
d
son(s) herein
nafter listed, by
dep
positing said envelope in the U.S. Mail, or by pla
d
n
M
acing said co
opy(ies) into an inter-off delivery
o
ffice
y
rec
ceptacle loca in the Cl
ated
lerk's office.
.

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An
ndrew R. Lop ID: D-86
pez
6271
Pel
lican Bay State Prison
P.O Box 7500
O.
0
Cre
escent City, CA 95532

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ated: June 2, 2017
Da

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Su
usan Y. Soon
ng
Cl
lerk, United States Distr Court
d
rict

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By
y:_________
___________
_______
K
Kelly Collins, Deputy Cle to the
,
erk
H
Honorable PH
HYLLIS J. H
HAMILTON
N
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