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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANDREW R. LOPEZ, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 17-cv-02087-PJH ORDER TO SHOW CAUSE v. G. OLSON, et al., Defendants. 12 13 Plaintiff, a state prisoner, has filed a pro se civil rights complaint under 42 U.S.C. § 14 1983. Plaintiff has also filed an application to proceed in forma pauperis. Plaintiff alleges 15 that he is receiving inadequate medical care at Pelican Bay State Prison. He states that 16 his prescription for artificial tears was renewed at half the dosage and his Gabapentin 17 pain medication was reduced and eventually phased out. Plaintiff argues that medical 18 staff will only provide opioid pain medication in very rare cases. Plaintiff states he is in 19 severe pain and has trouble sleeping and performing daily activities. 20 The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996, 21 provides that a prisoner may not bring a civil action or appeal a civil judgment under 28 22 U.S.C. § 1915 “if the prisoner has, on three or more prior occasions, while incarcerated or 23 detained in any facility, brought an action or appeal in a court of the United States that 24 was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 25 which relief may be granted, unless the prisoner is under imminent danger of serious 26 physical injury.” 28 U.S.C. § 1915(g). The phrase “fails to state a claim on which relief 27 may be granted,” as used in § 1915(g), “parallels the language of Federal Rule of Civil 28 Procedure 12(b)(6).” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (internal 1 quotation marks omitted). A case is “frivolous” within the meaning of § 1915(g) if “it is of 2 little weight or importance: having no basis in law or fact.” Id. (internal quotation marks 3 omitted). Further, because § 1915(g) is a procedural rule that does not raise retroactivity 4 concerns, cases dismissed before the effective date of § 1915(g) may be counted as 5 qualifying dismissals or “strikes.” See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th 6 Cir. 1997). A court may count as strikes dismissals of district court cases as well as 7 dismissals of appeals. See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) 8 (prisoner does not get three frivolous claims and three frivolous appeals before being 9 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 11 United States District Court Northern District of California 10 the full filing fee at the outset of the action. 12 It appears that plaintiff has at least three strikes pursuant to § 1915(g). In Lopez v. 13 Yamat, No. 07-cv-1765 FRZ (E.D. Cal. Jan. 23, 2009), the court dismissed plaintiff’s 14 action for his repeated failure to comply with Rules 8 and 10 of the Federal Rules of Civil 15 Procedure. The Ninth Circuit affirmed the dismissal for failing to comply with Rule 8. See 16 Docket No. 33. The district court dismissal constitutes a strike as frivolous and for failure 17 to state a claim. 18 In Lopez v. Cate, No. 11-cv-0806 MCE KJN (E.D. Cal. Sep. 29, 2011), the court 19 dismissed plaintiff’s claims as barred by the statute of limitations. The Ninth Circuit did 20 not allow the appeal to proceed because it was so insubstantial as to not warrant further 21 review. Docket No. 29. The statute of limitations dismissal by the district court 22 constitutes a strike. See Belanus v. Clark, 796 F.3d 1021 (9th Cir. 2015) (affirming the 23 strike finding for a case that was dismissed as untimely). 24 In Lopez v. Beard, No. 13-cv-1556 LJO GSA (E.D. Cal. May 22, 2015), the court 25 dismissed plaintiff’s claims for failure to state a claim. Plaintiff challenged his denial of 26 parole by the Board of Parole Hearings and the rules and regulations that were 27 employed. The court noted that plaintiff could file a habeas petition to challenge the 28 denial so dismissed the case without prejudice. However, court records indicate that 2 1 pla aintiff had already filed many habeas petition including a petition challenging the same a d ns g g e 2 parole denial. See Lope v. Brown No. 12-cv . ez n, v-1172 AWI BAM (E.D Cal. Oct. 9, 2012). I D. 3 nied the pet tition on the merits app e proximately one year before plain filed y ntiff The court den 4 the civil rights action. Th Ninth Circuit did no allow the appeal in the civil righ action to e s he ot hts o 5 pro oceed beca ause it was so insubsta antial as to not warran further re nt eview. Dock No. 21 ket 6 in Lopez v. Be L eard, No. 13-cv-1556 LJO GSA. Therefore, the district court dism , missal 7 constitutes a strike for fa ailure to state a claim. 8 9 10 United States District Court Northern District of California 11 12 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 2 13 14 PH HYLLIS J. H HAMILTON N Un nited States District Ju s udge 15 16 \\can ndoak.cand.circ9 9.dcn\data\users\PJHALL\_psp\2 2017\2017_02087 7_Lopez_v_Olso on_(PSP)\17-cv-02087-PJH-osc_ _p.docx 17 18 19 20 21 22 23 24 25 26 27 28 3 1 2 UNITED STATES D D DISTRICT C COURT 3 NORTHER DISTRIC OF CALI RN CT IFORNIA 4 5 ANDREW R. LOPEZ, A . Case No. 1 17-cv-02087 7-PJH Plaintiff, 6 v. CERTIFIC CATE OF S SERVICE 7 8 G. OLSON, et al., G e s. Defendants 9 10 United States District Court Northern District of California 11 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. 12 13 14 15 16 That on June 2, 201 I SERVE a true and correct cop n 17, 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. . 17 18 19 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 20 21 22 ated: June 2, 2017 Da 23 24 Su usan Y. Soon ng Cl lerk, United States Distr Court d rict 25 26 27 28 By y:_________ ___________ _______ K Kelly Collins, Deputy Cle to the , erk H Honorable PH HYLLIS J. H HAMILTON N 4

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