Donnie Ray McKinley v. K. Calatayud

• Court: District Court, C.D. California
• Decided: July 11, 2022
• Docket: 5:22-cv-00214
• Status: Unknown

Opinion

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL Case No.: 5:22-00214 JWH (ADS) Date: July 11, 2022 Title: McKinley v. Calatayud

Present: The Honorable Autumn D. Spaeth, United States Magistrate Judge

Kristee Hopkins None Reported Deputy Clerk Court Reporter / Recorder

Attorney(s) Present for Plaintiff(s): Attorney(s) Present for Defendant(s): None Present None Present

Proceedings: (IN CHAMBERS) ORDER TO SHOW CAUSE WHY THIS ACTION SHOULD NOT BE DISMISSED PURSUANT TO 28 U.S.C. § 1915(G)

On February 1, 2022, Plaintiff Donnie R. McKinley, a state prisoner, filed this civil rights action pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) Plaintiff also filed a Request to Proceed Without Prepayment of Filing Fees (“IFP Request”). (Dkt. No. 2.)

Pursuant to 28 U.S.C. § 1915(g) (“Section 1915(g)”), a prisoner who has brought three or more unsuccessful lawsuits, otherwise known as strikes, is barred from proceeding in forma pauperis. A case or appeal is considered a strike

if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g). The danger must exist at the time the prisoner filed the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

A court may dismiss an action on its own pursuant to Section 1915(g) after providing the plaintiff an opportunity to be heard on the matter. See Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005); see also Griffin v. L.A. Cnty. Jail, No. 2:22-cv-02909-PA-JDE, 2022 WL 1443080, at *1 (C.D. Cal. May 6, 2022) (“Courts

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CIVIL MINUTES – GENERAL Case No.: 5:22-00214 JWH (ADS) Date: July 11, 2022 Title: McKinley v. Calatayud may raise Section 1915(g) sua sponte and dismiss the action after providing the plaintiff with an opportunity to be heard.”); Hernandez v. Ventura Cnty., No. CV 10-4373 GHK (JC), 2010 WL 5313476, at *2 (C.D. Cal. Nov. 16, 2010) (“Courts may, sua sponte, dismiss an action that is barred by Section 1915(g), but must notify the prisoner/litigant of the strikes it considers to support such a dismissal, and allow the prisoner an opportunity to be heard on the matter before dismissing the case.”). Once a prisoner receives notice of this issue, he bears the burden of showing Section 1915(g) does not preclude in forma pauperis status. King, 398 F.3d at 1120.

Here, it appears Plaintiff has filed at least three prior civil rights cases while he was a state prisoner that resulted in the dismissals of his claims for failure to state claim upon which relief may be granted:

1. McKinley v. Small, No. 3:09-cv-00579-W-BLM (S.D. Cal. Nov. 3, 2009) (dismissing second amended complaint for failure to state a claim);

2. McKinley v. Cates, No. 3:11-cv-01292-BTM-MDD (S.D. Cal. Sept. 19, 2011) (dismissing complaint for failure to state a claim for relief);

3. McKinley v. Ruddy, No. 3:17-cv-00154-BAS-WVG (S.D. Cal. Nov. 9, 2017) (dismissing complaint for failure to state a claim for relief); and

4. McKinley v. Frentz, No. 3:17-cv-00243-CAB-BGS (S.D. Cal. June 21, 2017) (dismissing complaint for failure to state a claim for relief).

Based on these four cases, it appears Plaintiff’s current case is subject to dismissal pursuant to Section 1915(g). Accordingly, Plaintiff is ordered to show cause why his IFP Request should not be denied because he has filed three or more cases that constitute strikes under Section 1915(g) and has not plausibly alleged he is currently under imminent danger of serious physical injury. Plaintiff shall file a response to this Order by no later than August 2, 2022. Alternatively, Plaintiff may avoid dismissal by paying the full filing fee within this deadline.

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CIVIL MINUTES – GENERAL Case No.: 5:22-00214 JWH (ADS) Date: July 11, 2022 Title: McKinley v. Calatayud Plaintiff is warned that failure to timely file a response to this Order may result in a recommendation to the District Judge that this action be dismissed for failure to prosecute and obey court orders pursuant to Federal Rule of Civil Procedure 41(b).

IT IS SO ORDERED.

Initials of Clerk kh

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