Anderson v. Peterson et al

Filing 6

ORDER TO SHOW CAUSE Show Cause Response due by 5/7/2014.. Signed by Judge Lucy H. Koh on 4/5/14. (Attachments: # 1 Certificate/Proof of Service)(mpb, COURT STAFF) (Filed on 4/7/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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TROY J. ANDERSON,

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Plaintiff,

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v.
MARK A. PETERSON, et al.,
Defendants.

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No. C 14-0509 LHK (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 for alleged civil rights violations. Plaintiff has also filed an

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application for leave to proceed in forma pauperis (“IFP”). (Docket No. 2).

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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

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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
to state a claim on which relief may be granted” parallels the language of Federal Rule of Civil
Order To Show Cause
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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 at least three such cases dismissed on the ground that they were frivolous, malicious, or

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

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

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purposes of section 1915(g): (1) Anderson v. Geithner, No. 12-0901 JWS (PR) (N.D. Cal.

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dismissed on April 24, 2012) (dismissed as frivolous); (2) Anderson v. Peterson, No. 12-0887

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JSW (PR) (N.D. Cal. dismissed on April 24, 2012) (dismissed for failure to state a claim); (3)

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Anderson v. CDCR, No. 10-5557 CW (PR) (N.D. Cal. dismissed Aug. 10, 2011) (dismissed

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under Heck v. Humphrey, 512 U.S. 477 (1994)); (4) Anderson v. Superior Court, No. 09-2790

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JSW (PR) (N.D. Cal. dismissed July 31, 2009) (dismissed for failure to state a claim); (5)

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Anderson v. San Francisco Police Department, No. 05-1725 JSW (PR) (N.D. Cal. dismissed
Order To Show Cause
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May 9, 2005) (dismissed under Heck v. Humphrey, 512 U.S. 477 (1994)); and (6) Anderson v.

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Pittsburg Police Department, No. 01-0967 CRB (PR) (N.D. Cal. dismissed on May 21, 2011)

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(dismissed under Heck v. Humphrey, 512 U.S. 477 (1994)).

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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 $400.00 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:

4/5/14
LUCY H. KOH
United States District Judge

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Order To Show Cause
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