Shove-v-Brown et al

Filing 21

ORDER TO SHOW CAUSE. Signed by Judge Ronald M. Whyte on 7/10/12. (jg, COURT STAFF) (Filed on 7/11/2012)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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THEODORE SHOVE,

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Plaintiff,

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v.
EDMUND G. BROWN, et al.,
Defendants.

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No. C 12-0211 RMW (PR)
ORDER TO SHOW CAUSE

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

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U.S.C. § 1983 seeking damages and injunctive and declaratory relief for alleged civil rights

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violations. Plaintiff has also filed an application for leave to proceed in forma pauperis (“IFP”)

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(dkt. nos. 2, 8), two motions for the Chief Judge of the Northern District to remove the

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undersigned judge from this action (dkt. nos. 7, 11), two motions for clarification of record and

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compliance to legislative demands (dkt. nos. 10, 13), a motion for findings and conclusions (dkt.

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no. 19), and a variety of other communications.

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The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective,

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on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C.

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§ 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United States that was dismissed on the
Order To Show Cause
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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,

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unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails

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to state a claim on which relief may be granted” parallels the language of Federal Rule of Civil

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Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that

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is “of little weight or importance: having no basis in law or fact,” and the word “malicious”

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refers to a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d

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1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories

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can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action under

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section 1915(g) should only occur when, “after careful evaluation of the order dismissing an

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[earlier] action, and other relevant information, the district court determines that the action was

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dismissed because it was frivolous, malicious or failed to state a claim.” Id.

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Andrews requires that the prisoner be given notice of the potential applicability of section

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1915(g), by either the district court or the defendants, but also requires the prisoner to bear the

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ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id.

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Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but requires

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the court to notify the prisoner of the earlier dismissals it considers to support a section 1915(g)

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dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the

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action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner cannot proceed

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with his action as a pauper under section 1915(g), but he still may pursue his claims if he pays

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the full filing fee at the outset of the action.

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A review of the dismissal orders in plaintiff’s prior prisoner actions reveals that he has

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had three such cases dismissed on the ground that they were frivolous, malicious, or failed to

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state a claim upon which relief may be granted. Plaintiff is now given notice that the court

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believes the following federal district court dismissals may be counted as dismissals for purposes

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of section 1915(g): (1) Shove v. United States District Court Judges, No. C 09-2316-UNA (D.

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D.C. Jan. 25, 2010) (dismissed under Heck v. Humphrey, 512 U.S. 477 (1994)); Shove v.

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Schwarzenegger, No. C 09-0656 RMW (PR) (N.D. Cal. June 3, 2009) (dismissed under Heck,
Order To Show Cause
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and Younger v. Harris, 401 U.S. 37 (1971)); and (3) Shove v. Stewart, No. C 98-439 RGS-VAM

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(D. Ariz. May 1, 1998) (dismissed under 28 U.S.C. § 1915A(b)(1)). In addition, the following

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Ninth Circuit Court of Appeals dismissal may be counted as dismissal under section 1915(g):

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(1) In re Theodore C. Shove, No. 96-80069 (9th Cir. Jan. 21, 2010) (“Because the appeal is so

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insubstantial as to not warrant further review, it shall not be permitted to proceed.”).

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In light of these dismissals, and because plaintiff does not appear to be under imminent

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danger of serious physical injury, see Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007), plaintiff is ORDERED TO SHOW CAUSE in writing no later than thirty (30) days from

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the date of this order why his motion for leave to proceed IFP should not be denied and this

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action should not be dismissed pursuant to 28 U.S.C. § 1915(g). If plaintiff is so inclined, he

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may avoid dismissal by paying the $350.00 filing fee. In any event, the court will continue to

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review under section 1915(g) all future actions filed by plaintiff while he is incarcerated in

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which he seeks IFP status.

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Failure to file a timely response or failure to pay the full filing fee in will result in the
dismissal of this action without further notice to plaintiff.
IT IS SO ORDERED.
DATED:
RONALD M. WHYTE
United States District Judge

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Order To Show Cause
G:\PRO-SE\SJ.Rmw\CR.12\Shove211osc1915.wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

THEODORE SHOVE et al,

Case Number: CV12-00211 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
EDMUND G. BROWN et al,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on July 11, 2012, I SERVED a true and correct copy(ies) of the attached, by placing said
copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing
said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

Theodore Shove G11092
San Quentin State Prison
San Quentin, CA 94974
Dated: July 11, 2012
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk