Herbert Johnson v. George Gascon

• Court: District Court, C.D. California
• Decided: September 22, 2022
• Docket: 2:22-cv-06803
• Status: Unknown

Opinion

Case 2:22-cv-06803-JAK-JDE Document 5 Filed 09/22/22 Page 1 of 4 Page ID #:23

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 HERBERT JOHNSON, ) Case No. 2:22-cv-06803-JAK-JDE ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THIS ACTION SHOULD NOT BE ) 14 D.A. GEORGE GASCON, ) DISMISSED PURSUANT TO 28 ) U.S.C. § 1915(g) ) 15 ) Defendant. ) 16

17 18 On September 19, 2022, the Court received from Herbert Johnson, 19 (“Plaintiff”), an inmate or detainee at California State Prison, Corcoran, with 20 CDCR Prisoner Number P60805, proceeding pro se, a civil rights complaint 21 against “D.A. George Gascon”(“Defendant”), alleging violations of Plaintiff’s 22 Fifth, Sixth, and Fourteenth Amendments rights caused by Defendant’s delay 23 in responding to one or more “Post Conviction Application(s).” Dkt. 1 24 (“Complaint”) at 1-4. Plaintiff did not pay the filing fee but did submit his 25 CDCR Inmate Statement Report, presumably in support of a forthcoming 26 request to proceed in forma pauperis (“IFP”). Dkt. 2 (“IFP Request”). 27 Pursuant to 28 U.S.C. § 1915(g), a prisoner is prohibited from 28 “bring[ing] a civil action or appeal” IFP if the prisoner: Case 2:22-cv-06803-JAK-JDE Document 5 Filed 09/22/22 Page 2 of 4 Page ID #:24

1 has, on 3 or more prior occasions, while incarcerated or detained 2 in any facility, brought an action or appeal in a court of the United 3 States that was dismissed on the grounds that it is frivolous, 4 malicious, or fails to state a claim upon which relief may be 5 granted, unless the prisoner is under imminent danger of serious 6 physical injury. 7 Section 1915(g) “is commonly known as the ‘three strikes’ provision. ‘Strikes’ 8 are prior cases or appeals, brought while the plaintiff was a prisoner, which 9 were dismissed ‘on the ground that[they were] frivolous, malicious, or fail[] to 10 state a claim . . . .” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005) 11 (as amended) (first two alterations in original). Section 1915(g) provides a 12 narrow exception permitting a prisoner who has had three prior “strikes” but 13 who is in “imminent danger of serious physical injury” to proceed despite the 14 strikes. 28 U.S.C. § 1915(g); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th 15 Cir. 2000) (en banc). The danger must exist at the time the prisoner filed the 16 complaint, not at some earlier or later time. Andrews v. Cervantes, 493 F.3d 17 1047, 1053 (9th Cir. 2007) (as amended). 18 Courts may raise Section 1915(g) sua sponte and dismiss the action after 19 providing the plaintiff with an opportunity to be heard. See Andrews, 398 F.3d 20 at 1120; see also Strope v. Cummings, 653 F.3d 1271, 1273 (10th Cir. 2011) 21 (courts “may raise the issue of strikes sua sponte”); Hernandez v. Ventura 22 Cty., 2010 WL 5313476, at *2 (C.D. Cal. Nov. 16, 2010) (“Courts may, sua 23 sponte, dismiss an action that is barred by Section 1915(g), but must notify the 24 prisoner/litigant of the strikes it considers to support such a dismissal, and 25 allow the prisoner an opportunity to be heard on the matter before dismissing 26 the case.”), report and recommendation adopted by 2010 WL 5315438 (C.D. 27 Cal. Dec. 15, 2010). Once the Court notifies a plaintiff that his case may be 28 subject to dismissal under Section 1915(g), the plaintiff bears the ultimate 2 Case 2:22-cv-06803-JAK-JDE Document 5 Filed 09/22/22 Page 3 of 4 Page ID #:25

1 burden of persuading the Court that Section 1915(g) does not apply. Andrews, 2 398 F.3d at 1120. “A dismissal under Section 1915(g) is without prejudice to a 3 plaintiff refiling his civil rights complaint after prepayment of the full filing 4 fee.” Hernandez, 2010 WL 5313476, at *2. 5 Here, although the Court makes no current findings, the docket of this 6 Court and the Southern District of California appear to reflect at least three 7 prior civil actions filed by Plaintiff, under the same CDCR number, while 8 incarcerated that resulted in dismissal and/or termination based on findings 9 that the actions were frivolous, malicious, or failed to state a claim upon which 10 relief may be granted under 28 U.S.C. § 1915(e)(2): 11 1. Johnson v. Deputy Malone, et al., Civil Case No. 2:10-cv-01611- 12 GHK-RNB (C.D. Cal. April 26, 2010) (Report and Recommendation 13 (“R&R”) to Dismiss First Amended Complaint for failure to state a 14 claim pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b)) (Dkt. 9); 15 (C.D. Cal. June 4, 2010) (Order Adopting R&R) (Dkt. 11); 16 2. Johnson v. Walker, et al., Civil Case No. 3:12-cv-00841-LAB-RBB 17 (S.D. Cal. June 26, 2012) (Order Dismissing Civil Action as 18 Frivolous pursuant to 28 U.S.C. § 1915A(b)(1) and Denying Motion 19 to Proceed IFP as Moot) (Dkt. 11); 20 3. Johnson v. Walker, et al., Civil Case No. 3:12-cv-01837-CAB-BGS 21 (S.D. Cal. Aug. 7, 2012) (Order Dismissing Civil Action as Frivolous 22 pursuant to 28 U.S.C. § 1915A(b)(1)) (Dkt. 18); and 23 4. Johnson v. Millard, et al., Civil Case No. 3:11-cv-01691-JAH-NLS 24 (S.D. Cal. Sept. 5, 2012) (Orders Adopting R&Rs to Grant 25 Defendants’ Motions to Dismiss for failure to state a claim pursuant 26 to Fed. R. Civ. P. 12(b)(6)) (Dkt. 37, 38); (S.D. Cal. Feb. 11, 2013) 27 (Order Dismissing Action) (Dkt. 41)). 28 3 Case 2:22-cv-06803-JAK-JDE Document5 Filed 09/22/22 Page4of4 Page ID #:26

1 || In addition, at least one other district court has found Plaintiff to have received 2 || at least three prior “strikes” under 28 U.S.C. § 1915(g). See Johnson v. Ferrel, 3 let al., Case No. 3:18-cv-02553-JAH-BGS (S.D. Cal. Jan. 31, 2019) (Dkt. 5 4 || (dismissing action under Section 1915(g), finding Plaintiff had suffered at least 5 ||three prior “strikes’”). 6 As it appears that Plaintiff, a prisoner who has had at least three prior 7 ||c1vil actions or proceedings he commenced as a prisoner or detainee dismissed 8 || as frivolous, the instant action appears subject to dismissal under 28 U.S.C. 9 |1§ 1915(g). Further, in the Complaint, Plaintiff does not allege he is currently 10 |}under imminent danger of serious physical injury. 11 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE why this 12 action should not be dismissed without prejudice on the grounds that Plaintiff 13 || has suffered three or more “strikes” within the meaning of 28 U.S.C. § 1915(g) 14 □□ □□□ has not plausibly alleged that he is currently under imminent danger of 15 ||serious physical injury. Within twenty-one (21) days of this Order, Plaintiff 16 ||shall file a written response to this Order setting forth any legal or factual basis 17 || why this action should not be dismissed under 28 U.S.C. § 1915(g). In the 18 || alternative, Plaintiff may avoid dismissal by paying the full $402 filing fee 19 || within this deadline. 20 The Court warns Plaintiff that failure to timely respond as directed in 21 this Order may result the dismissal of this action. 22 23 ||Dated: September 22, 2022 Le KE, eG 24 □□ 5 J OHN D. EARLY United States Magistrate Judge 26 27 28