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)

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Case 4:21-cv-05264-JSW Document 28 Filed 01/17/23 Page 1 of 2 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PAUL DAVID JOHNSON, Plaintiff, 8 9 10 United States District Court Northern District of California 11 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 12 Plaintiff was granted leave to file an amended complaint, but the case was then dismissed 13 because the Court did not receive his amended complaint before the deadline. Shortly thereafter, 14 Plaintiff filed his amended complaint. In light of the fact that Plaintiff is proceeding pro se and is 15 incarcerated, the lateness of his amended complaint is excused. Reconsideration of the dismissal 16 order is GRANTED, the judgment is VACATED, and the case is REOPENED. 17 Plaintiff was previously granted leave to proceed in forma pauperis. The Prison Litigation 18 Reform Act of 1995 ("PLRA") provides that a prisoner may not bring a civil action or appeal a 19 civil judgment under 28 U.S.C. 1915 "if the prisoner has, on 3 or more prior occasions, while 20 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 21 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 22 which relief may be granted, unless the prisoner is under imminent danger of serious physical 23 injury." 28 U.S.C. § 1915(g). A prisoner must be given notice of the potential applicability of 24 Section 1915(g), by either the district court or the defendants, but the prisoner bears the ultimate 25 burden of persuasion that Section 1915(g) does not bar pauper status for him. Andrews v. King, 26 398 F.3d 1113, 1121 (9th Cir. 2005). 27 28 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 1 Johnson v. Agpoon, Case No. 21-15606 (9th Cir., Sept. 16, 2021) (appeal dismissed as frivolous); 2 Johnson v. Agpoon, Case No. 20-cv-06676-LHK (N.D. Cal., Mar. 9, 2021) (dismissed for failure 3 to state a claim upon which relief may be granted); Johnson v. Davis, Case No. 20-cv-02851-LHK 4 (N.D. Cal., Jan. 4, 2021) (dismissed for failure to state a claim upon which relief may be granted); 5 Johnson v. California Prison Industry Authority, Case No. CIV S-11-0164 CKD P (E.D. Cal., 6 Dec. 21, 2011) (dismissed for failure to file amended complaint after dismissal for failure to state a 7 upon which relief may be granted); Johnson v. Sisto, Case No. 08-cv-01962-RRC (E.D. Cal., July 8 26, 2010) (dismissed for failure to state a claim upon which relief may be granted). 9 As Plaintiff has at least three strikes, he may not proceed in forma pauperis unless he was 10 in any imminent danger of serious physical injury when he filed this case. The plain language of 11 the imminent danger clause in Section 1915(g) indicates that "imminent danger" is to be assessed 12 at the time the prisoner filed his case. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 13 The complaint sets forth no imminent danger --- the allegation is simply that Plaintiff was not 14 allowed to return to the law library in violation of his Equal Protection rights. The imminent 15 danger exception does not apply. 16 Leave to proceed in forma pauperis is REVOKED. Within 28 days of the date this order is 17 filed, plaintiff must pay the full $350.00 filing fee; failure to do so will result in the dismissal of 18 this case without prejudice to Plaintiff bringing his claims in a new civil rights case in which 19 he pays the filing fee. 20 21 IT IS SO ORDERED. Dated: January 17, 2023 22 23 JEFFREY S. WHITE United States District Judge 24 25 26 27 28 2

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