Johnson v. Cuevas et al

Filing 28

ORDER GRANTING RECONSIDERATION; VACATING JUDGMENT; REVOKING IN FORMA PAUPERIS STATUS; TO PAY FILING FEE by Judge Jeffrey S. White granting 26 MOTION under rule 60(a). (kkp, COURT STAFF) (Filed on 1/17/2023)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

Case 4:21-cv-05264-JSW Document 28 Filed 01/17/23 Page 1 of 2

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL DAVID JOHNSON,
Plaintiff,

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United States District Court
Northern District of California

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v.
A. CUEVAS, et al.,
Defendants.

Case No. 21-cv-05264-JSW
ORDER GRANTING
RECONSIDERATION; VACATING
JUDGMENT; REVOKING IN FORMA
PAUPERIS STATUS; TO PAY FILING
FEE
Re: Dkt. No. 26

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Plaintiff was granted leave to file an amended complaint, but the case was then dismissed

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because the Court did not receive his amended complaint before the deadline. Shortly thereafter,

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Plaintiff filed his amended complaint. In light of the fact that Plaintiff is proceeding pro se and is

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incarcerated, the lateness of his amended complaint is excused. Reconsideration of the dismissal

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order is GRANTED, the judgment is VACATED, and the case is REOPENED.

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Plaintiff was previously granted leave to proceed in forma pauperis. The Prison Litigation

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Reform Act of 1995 ("PLRA") provides that a prisoner may not bring a civil action or appeal a

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civil judgment under 28 U.S.C. 1915 "if the prisoner has, on 3 or more prior occasions, while

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

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that 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 physical

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injury." 28 U.S.C. § 1915(g). A prisoner must be given notice of the potential applicability of

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Section 1915(g), by either the district court or the defendants, but the prisoner bears the ultimate

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burden of persuasion that Section 1915(g) does not bar pauper status for him. Andrews v. King,

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398 F.3d 1113, 1121 (9th Cir. 2005).

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Plaintiff has had three or more cases or appeals that qualify as dismissals under Section
1915(g), i.e. “strikes.” See Johnson v. Davis, Case No. 21-15093 (9th Cir., Sept. 17, 2021);

United States District Court
Northern District of California

Case 4:21-cv-05264-JSW Document 28 Filed 01/17/23 Page 2 of 2

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Johnson v. Agpoon, Case No. 21-15606 (9th Cir., Sept. 16, 2021) (appeal dismissed as frivolous);

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Johnson v. Agpoon, Case No. 20-cv-06676-LHK (N.D. Cal., Mar. 9, 2021) (dismissed for failure

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to state a claim upon which relief may be granted); Johnson v. Davis, Case No. 20-cv-02851-LHK

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(N.D. Cal., Jan. 4, 2021) (dismissed for failure to state a claim upon which relief may be granted);

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Johnson v. California Prison Industry Authority, Case No. CIV S-11-0164 CKD P (E.D. Cal.,

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Dec. 21, 2011) (dismissed for failure to file amended complaint after dismissal for failure to state a

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upon which relief may be granted); Johnson v. Sisto, Case No. 08-cv-01962-RRC (E.D. Cal., July

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26, 2010) (dismissed for failure to state a claim upon which relief may be granted).

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As Plaintiff has at least three strikes, he may not proceed in forma pauperis unless he was

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in any imminent danger of serious physical injury when he filed this case. The plain language of

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the imminent danger clause in Section 1915(g) indicates that "imminent danger" is to be assessed

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at the time the prisoner filed his case. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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The complaint sets forth no imminent danger --- the allegation is simply that Plaintiff was not

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allowed to return to the law library in violation of his Equal Protection rights. The imminent

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danger exception does not apply.

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Leave to proceed in forma pauperis is REVOKED. Within 28 days of the date this order is

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filed, plaintiff must pay the full $350.00 filing fee; failure to do so will result in the dismissal of

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this case without prejudice to Plaintiff bringing his claims in a new civil rights case in which

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he pays the filing fee.

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IT IS SO ORDERED.
Dated: January 17, 2023

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JEFFREY S. WHITE
United States District Judge

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