8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 PAUL DAVID JOHNSON, Case No. 20-CV-04023-LHK
13 Plaintiff, ORDER TO SHOW CAUSE 14 v.
15 RON DAVIS, et al., 16 Defendants. 17 18 Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under 19 42 U.S.C. § 1983, seeking damages for alleged civil rights violations (“Complaint”). See Dkt. No. 20 1. Specifically, plaintiff alleged that he was deprived of a visit from his daughter on Father’s Day 21 and that this deprivation was retaliation for plaintiff’s refusal to go through an x-ray security 22 machine. See Compl. at 4. Plaintiff alleged that various defendants withheld information from 23 him in retaliation for plaintiff’s inmate grievance regarding the withheld Father’s Day visit. See 24 id. at 18-19. Plaintiff claimed that these retaliatory acts violated the First Amendment, see id. at 4, 25 violated his right to equal protection under the Fourteenth Amendment, see id. at 39, were the 26 result of improper training, see id. at 44, and were intended to inflict emotional distress, see id. at 27 45. Plaintiff sued seventy defendants for these alleged wrongs. See id. at 5-7. 1 Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2 2. For the reasons stated below, the Court orders plaintiff to show cause why his motion for leave 3 to proceed IFP should not be denied, and this action should not be dismissed pursuant to 28 U.S.C. 4 § 1915(g). 5 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 6 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 7 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 8 facility, brought an action or appeal in a court of the United States that was dismissed on the 9 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 10 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 11 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 12 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 13 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 14 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 15 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 16 1121 (9th Cir. 2005) (citation omitted). Dismissal of an action under section 1915(g) should only 17 occur when, “after careful evaluation of the order dismissing an [earlier] action, and other relevant 18 information, the district court determines that the action was dismissed because it was frivolous, 19 malicious or failed to state a claim.” Id. 20 Andrews requires that the prisoner be given notice of the potential applicability of section 21 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 22 ultimate burden of persuasion to show that section 1915(g) does not bar pauper status in this case. 23 Id. Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but 24 requires the court to notify the prisoner of the earlier dismissals it considers support a section 25 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before 26 dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner 27 cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his 1 claims if he pays the full filing fee at the outset of the action. 2 A review of the dismissal orders in plaintiff’s prior prisoner actions reveals that he has had 3 at least three cases dismissed on the ground that they were frivolous, malicious, or failed to state a 4 claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the 5 following federal district court dismissals may be counted as dismissals for purposes of 6 section 1915(g): 7 1. Johnson v. Sisto, No. 08-CV-1962-RRC (E.D. Cal. dismissed July 26, 2010) (dismissed for 8 failure to state a claim); 9 2. Johnson v. Cal. Prison Industry Authority, No. 11-CV-0164-CKD (E.D. Cal. dismissed 10 Feb. 1, 2012) (dismissed for failure to state a claim, in part with leave to amend, and in 11 part without leave to amend because entity’s immunity defense was apparent on the face of 12 the complaint; ultimately dismissed for failure to file an amended complaint); and 13 3. Johnson v. Chudy, No. 14-CV-4958-JST (N.D. Cal. dismissed June 28, 2017)1 (dismissed 14 for failure to state a claim where complaint was time-barred on its face). 15 The Court has evaluated each of these cases based on their dismissal orders. See Andrews, 398 16 F.3d at 1120. Under precedent from the United States Court of Appeals for the Ninth Circuit, 17 each dismissal counts as a strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893- 18 94 (9th Cir. 2011) (dismissal for failure to state a claim constitutes a strike); Harris v. Harris, 935 19 F.3d 670, 676 (9th Cir. 2019) (“[T]here are rare cases where an affirmative defense, such as 20 immunity, may be so clear on the face of the complaint that dismissal may qualify as a strike for 21 failure to state a claim.”); Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (where 22 complaint is dismissed with leave to amend, and prisoner fails to amend, the dismissal counts as a 23 strike); Belanus v. Clark, 796 F.3d 1021, 1025-30 (9th Cir. 2015) (where complaint is time-barred 24 on its face, the dismissal counts as a strike). 25 26
27 1 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). 1 In addition, it is apparent that plaintiff is not entitled to proceed under the imminent danger 2 || exception, because plaintiff faces no imminent danger that bears a nexus to the wrongs alleged in 3 the Complaint. The danger faced by the plaintiff must be “clearly related to [the] initial 4 complaint.” Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (discussing nexus 5 requirement). “[T]he complaint of a three-strikes litigant must reveal a nexus between the 6 || imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 7 ‘imminent danger’ exception... Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). The 8 Ninth Circuit has recognized that the imminent danger must be sufficiently “related to” a claim in 9 the complaint for the imminent danger exception to apply. See Williams, 775 F.3d at 1190 (finding 10 || plaintiffs allegations of ongoing danger — threats to her safety by other inmates — “clearly related 11 to her initial complaint” regarding rumors started by defendants).
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11
12 PAUL DAVID JOHNSON, Case No. 20-CV-04023-LHK
13 Plaintiff, ORDER TO SHOW CAUSE 14 v.
15 RON DAVIS, et al., 16 Defendants. 17 18 Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under 19 42 U.S.C. § 1983, seeking damages for alleged civil rights violations (“Complaint”). See Dkt. No. 20 1. Specifically, plaintiff alleged that he was deprived of a visit from his daughter on Father’s Day 21 and that this deprivation was retaliation for plaintiff’s refusal to go through an x-ray security 22 machine. See Compl. at 4. Plaintiff alleged that various defendants withheld information from 23 him in retaliation for plaintiff’s inmate grievance regarding the withheld Father’s Day visit. See 24 id. at 18-19. Plaintiff claimed that these retaliatory acts violated the First Amendment, see id. at 4, 25 violated his right to equal protection under the Fourteenth Amendment, see id. at 39, were the 26 result of improper training, see id. at 44, and were intended to inflict emotional distress, see id. at 27 45. Plaintiff sued seventy defendants for these alleged wrongs. See id. at 5-7. 1 Plaintiff also filed a motion for leave to proceed in forma pauperis (“IFP”). See Dkt. No. 2 2. For the reasons stated below, the Court orders plaintiff to show cause why his motion for leave 3 to proceed IFP should not be denied, and this action should not be dismissed pursuant to 28 U.S.C. 4 § 1915(g). 5 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 6 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 7 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 8 facility, brought an action or appeal in a court of the United States that was dismissed on the 9 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 10 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 11 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 12 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 13 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 14 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 15 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 16 1121 (9th Cir. 2005) (citation omitted). Dismissal of an action under section 1915(g) should only 17 occur when, “after careful evaluation of the order dismissing an [earlier] action, and other relevant 18 information, the district court determines that the action was dismissed because it was frivolous, 19 malicious or failed to state a claim.” Id. 20 Andrews requires that the prisoner be given notice of the potential applicability of section 21 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 22 ultimate burden of persuasion to show that section 1915(g) does not bar pauper status in this case. 23 Id. Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but 24 requires the court to notify the prisoner of the earlier dismissals it considers support a section 25 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before 26 dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner 27 cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his 1 claims if he pays the full filing fee at the outset of the action. 2 A review of the dismissal orders in plaintiff’s prior prisoner actions reveals that he has had 3 at least three cases dismissed on the ground that they were frivolous, malicious, or failed to state a 4 claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the 5 following federal district court dismissals may be counted as dismissals for purposes of 6 section 1915(g): 7 1. Johnson v. Sisto, No. 08-CV-1962-RRC (E.D. Cal. dismissed July 26, 2010) (dismissed for 8 failure to state a claim); 9 2. Johnson v. Cal. Prison Industry Authority, No. 11-CV-0164-CKD (E.D. Cal. dismissed 10 Feb. 1, 2012) (dismissed for failure to state a claim, in part with leave to amend, and in 11 part without leave to amend because entity’s immunity defense was apparent on the face of 12 the complaint; ultimately dismissed for failure to file an amended complaint); and 13 3. Johnson v. Chudy, No. 14-CV-4958-JST (N.D. Cal. dismissed June 28, 2017)1 (dismissed 14 for failure to state a claim where complaint was time-barred on its face). 15 The Court has evaluated each of these cases based on their dismissal orders. See Andrews, 398 16 F.3d at 1120. Under precedent from the United States Court of Appeals for the Ninth Circuit, 17 each dismissal counts as a strike. See Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893- 18 94 (9th Cir. 2011) (dismissal for failure to state a claim constitutes a strike); Harris v. Harris, 935 19 F.3d 670, 676 (9th Cir. 2019) (“[T]here are rare cases where an affirmative defense, such as 20 immunity, may be so clear on the face of the complaint that dismissal may qualify as a strike for 21 failure to state a claim.”); Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (where 22 complaint is dismissed with leave to amend, and prisoner fails to amend, the dismissal counts as a 23 strike); Belanus v. Clark, 796 F.3d 1021, 1025-30 (9th Cir. 2015) (where complaint is time-barred 24 on its face, the dismissal counts as a strike). 25 26
27 1 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). 1 In addition, it is apparent that plaintiff is not entitled to proceed under the imminent danger 2 || exception, because plaintiff faces no imminent danger that bears a nexus to the wrongs alleged in 3 the Complaint. The danger faced by the plaintiff must be “clearly related to [the] initial 4 complaint.” Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015) (discussing nexus 5 requirement). “[T]he complaint of a three-strikes litigant must reveal a nexus between the 6 || imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 7 ‘imminent danger’ exception... Pettus v. Morgenthau, 554 F.3d 293, 298 (2d Cir. 2009). The 8 Ninth Circuit has recognized that the imminent danger must be sufficiently “related to” a claim in 9 the complaint for the imminent danger exception to apply. See Williams, 775 F.3d at 1190 (finding 10 || plaintiffs allegations of ongoing danger — threats to her safety by other inmates — “clearly related 11 to her initial complaint” regarding rumors started by defendants). Here, plaintiff claims that he 12 || was prevented from seeing his daughter on Father’s Day as an act of retaliation, and that 13 information is being withheld from him in retaliation. See generally, Compl. As this does not 14 place plaintiff in any danger, plaintiff plainly does not qualify for the imminent danger exception. 15 In light of plaintiff's strikes, and because plaintiff is not under imminent danger of physical 16 injury, see Andrews vy. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), plaintiff is ORDERED TO 3 17 SHOW CAUSE in writing no later than thirty (30) days from the date of this order why his motion S 18 || for leave to proceed IFP should not be denied and this action should not be dismissed pursuant to 19 28 U.S.C. § 1915(g). If plaintiff is so inclined, he may avoid dismissal by paying the $400.00 20 || filing fee. In any event, the Court will continue to review under section 1915(g) all future actions 21 filed by plaintiff while he is incarcerated and in which he seeks IFP status. 22 Failure to file a timely response or failure to pay the full filing fee will result in the 23 dismissal of this action without further notice to plaintiff. 24 IT IS SO ORDERED. 25 26 || DATED: September 8, 2020 fucy K ef L LUCY H. K®H 27 UNITED STATES DISTRICT JUDGE 28 Case No. 20-CV-04023-LHK