Johnson v. Davis et al
Filing
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ORDER TO SHOW CAUSE. Signed by Judge Lucy H. Koh on September 8, 2020. Show Cause Response due by 10/8/2020. (kedS, COURT STAFF) (Filed on 9/8/2020)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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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
United States District Court
Northern District of California
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PAUL DAVID JOHNSON,
Plaintiff,
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Case No. 20-CV-02851-LHK
ORDER TO SHOW CAUSE
v.
RON DAVIS, et al.,
Defendants.
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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under
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42 U.S.C. § 1983, seeking damages for alleged civil rights violations (“Complaint”). See Dkt. No.
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1. Specifically, plaintiff alleged that prison staff failed to arrange a conference call for a hearing
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in plaintiff’s private lawsuit in Texas, and that because of prison staff’s failure plaintiff defaulted
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in his Texas lawsuit. See Compl. at 4. Plaintiff claimed that prison staff thus deprived plaintiff of
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access to the courts in violation of the First Amendment, see id. at 4-5, that this wrong was the
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result of a failure to train, see id. at 6, and that prison staff’s failure was intended to inflict
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emotional distress, see id. Plaintiff sued five defendants for these alleged wrongs. See id. at 2.
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Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). See Dkt. No.
2. For the reasons stated below, the Court orders plaintiff to show cause why his motion for leave
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Case No. 20-CV-02851-LHK
ORDER TO SHOW CAUSE
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to proceed IFP should not be denied, and this action should not be dismissed pursuant to 28 U.S.C.
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§ 1915(g).
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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
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United States District Court
Northern District of California
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Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is
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“of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to
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a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113,
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1121 (9th Cir. 2005) (citation omitted). Dismissal of an action under section 1915(g) should only
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occur when, “after careful evaluation of the order dismissing an [earlier] action, and other relevant
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information, the district court determines that the action was dismissed because it was frivolous,
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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 to show that section 1915(g) does not bar pauper status in this case.
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Id. Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but
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requires the court to notify the prisoner of the earlier dismissals it considers support a section
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1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before
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dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner
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cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his
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claims if he pays the full filing fee at the outset of the action.
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Case No. 20-CV-02851-LHK
ORDER TO SHOW CAUSE
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A review of the dismissal orders in plaintiff’s prior prisoner actions reveals that he has had
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at least three cases dismissed on the ground that they were frivolous, malicious, or failed to state a
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claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the
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following federal district court dismissals may be counted as dismissals for purposes of
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section 1915(g):
1. Johnson v. Sisto, No. 08-CV-1962-RRC (E.D. Cal. dismissed July 26, 2010) (dismissed for
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failure to state a claim);
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2. Johnson v. Cal. Prison Industry Authority, No. 11-CV-0164-CKD (E.D. Cal. dismissed
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Feb. 1, 2012) (dismissed for failure to state a claim, in part with leave to amend, and in
part without leave to amend because entity’s immunity defense was apparent on the face of
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United States District Court
Northern District of California
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the complaint; ultimately dismissed for failure to file an amended complaint); and
3. Johnson v. Chudy, No. 14-CV-4958-JST (N.D. Cal. dismissed June 28, 2017)1 (dismissed
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for failure to state a claim where complaint was time-barred on its face).
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The Court has evaluated each of these cases based on their dismissal orders. See Andrews, 398
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F.3d at 1120. Under precedent from the United States Court of Appeals for the Ninth Circuit,
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each dismissal counts as a strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-
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94 (9th Cir. 2011) (dismissal for failure to state a claim constitutes a strike); Harris v. Harris, 935
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F.3d 670, 676 (9th Cir. 2019) (“[T]here are rare cases where an affirmative defense, such as
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immunity, may be so clear on the face of the complaint that dismissal may qualify as a strike for
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failure to state a claim.”); Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (where
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complaint is dismissed with leave to amend, and prisoner fails to amend, the dismissal counts as a
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strike); Belanus v. Clark, 796 F.3d 1021, 1025-30 (9th Cir. 2015) (where complaint is time-barred
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on its face, the dismissal counts as a strike).
In addition, it is apparent that plaintiff is not entitled to proceed under the imminent danger
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exception, because plaintiff faces no imminent danger that bears a nexus to the wrongs alleged in
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This case has also been published as “Johnson v. Thuddy.” See No. 14-CV-04958-JST (PR),
2015 WL 1792306, at *1 (N.D. Cal. Apr. 17, 2015).
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Case No. 20-CV-02851-LHK
ORDER TO SHOW CAUSE
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the Complaint. The danger faced by the plaintiff must be “clearly related to [the] initial
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complaint.” Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (discussing nexus
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requirement). “[T]he complaint of a three-strikes litigant must reveal a nexus between the
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imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the
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‘imminent danger’ exception . . . .” Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). The
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Ninth Circuit has recognized that the imminent danger must be sufficiently “related to” a claim in
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the complaint for the imminent danger exception to apply. See Williams, 775 F.3d at 1190 (finding
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plaintiff’s allegations of ongoing danger – threats to her safety by other inmates – “clearly related
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to her initial complaint” regarding rumors started by defendants). Here, plaintiff claims that he
was unable to participate in a private lawsuit. See generally, Compl. As this does not place
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United States District Court
Northern District of California
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plaintiff in any danger, plaintiff plainly does not qualify for the imminent danger exception.
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In light of plaintiff’s strikes, and because plaintiff is not under imminent danger of physical
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injury, see Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), plaintiff is ORDERED TO
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SHOW CAUSE in writing no later than thirty (30) days from the date of this order why his motion
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for leave to proceed IFP should not be denied and this action should not be dismissed pursuant to
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28 U.S.C. § 1915(g). If plaintiff is so inclined, he may avoid dismissal by paying the $400.00
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filing fee. In any event, the Court will continue to review under section 1915(g) all future actions
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filed by plaintiff while he is incarcerated and in which he seeks IFP status.
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Failure to file a timely response or failure to pay the full filing fee will result in the
dismissal of this action without further notice to plaintiff.
IT IS SO ORDERED.
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DATED: September 8, 2020
LUCY H. KOH
UNITED STATES DISTRICT JUDGE
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Case No. 20-CV-02851-LHK
ORDER TO SHOW CAUSE
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