(PC) Sekona v. Gutierrez

• Court: District Court, N.D. California
• Decided: March 4, 2025
• Docket: 4:23-cv-06311
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ETUATE SEKONA, Case No. 23-cv-06311-HSG

8 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO REVOKE PLAINTIFF’S 9 v. IN FORMA PAUPERIS STATUS

10 GUTIERREZ, Re: Dkt. No. 27 11 Defendant.

12 13 Plaintiff filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. Dkt. No. 1. On 14 July 14, 2024, the Court granted Plaintiff leave to proceed in forma pauperis. Dkt. No. 16. Now 15 pending before the Court is Defendant’s motion to revoke Plaintiff’s in forma pauperis status. 16 Dkt. No. 27. Plaintiff has filed an opposition, Dkt. No. 30; and Defendant has filed a reply, Dkt. 17 No. 31. For the reasons set forth below, the Court grants Defendant’s motion to revoke Plaintiff’s 18 in forma pauperis status. Dkt. No. 27. 19 DISCUSSION 20 I. Procedural Background 21 Plaintiff is currently incarcerated at Valley State Prison. On or about November 2, 2023, 22 Plaintiff commenced this pro se civil rights action pursuant to 42 U.S.C. § 1983. Dkt. No. 1. The 23 operative complaint was filed on or about December 29, 2023. Dkt. No. 9. On July 14, 2024, the 24 Court granted Plaintiff leave to proceed in forma pauperis, Dkt. No. 16. That same day, the Court 25 screening the operative complaint, stating as follows:

26 The amended complaint is the operative complaint. The complaint names Salinas Valley State Prison correctional officer Gutierrez as a defendant. The complaint is hard to 27 follow, with some of it written in sentence fragments. The complaint is confusing as to make the following factual allegations. On June 27, 2014, Plaintiff was assaulted at Mule 1 Creek State Prison. In or around 2015, Plaintiff filed Sekona v. Custino (“Custino”), regarding this assault. At some point, Plaintiff was transferred to Salinas Valley State 2 Prison (“SVSP”). At SVSP, Plaintiff was housed in Cell No. 136 with a cellmate that smoked marijuana. The secondhand smoke generated by Plaintiff’s cellmate caused 3 Plaintiff to be sent to the hospital three times between April 2022 to June 2022 for blood “donix.” Plaintiff was transferred to Cell No. 118. However, because Plaintiff and 4 defendant Gutierrez were often engaged in verbal conflict and because defendant Gutierrez favors Latino inmates, defendant Gutierrez assigned a 300-lb inmate who also smoked 5 marijuana as Plaintiff’s cellmate for Cell No. 118 in order to harm Plaintiff. Plaintiff refused to be housed with the 300-lb inmate. When Plaintiff requested to be transferred to a 6 safety cell, defendant Gutierrez denied the request because of his personal bias and because he is not fair. Plaintiff filed a grievance against defendant Gutierrez. In response, defendant 7 Gutierrez issued Plaintiff a rules violation report for refusing the assigned cellmate. On or about December 4, 2022, Plaintiff prepared the final status report for Custino. On 8 December 6, 2022, Plaintiff handed this status report to defendant Gutierrez to be mailed to the courts. Defendant Gutierrez signed for the legal mail but did not log the mail in the 9 logbook. This legal mail never made it to the court, and Custino was dismissed for failing to file the required status report. Plaintiff alleges that defendant Gutierrez destroyed his 10 legal mail. Plaintiff alleges that defendant Gutierrez’s actions violate the First Amendment, the Eighth Amendment, and the Fourteenth Amendment. 11 Liberally construed, the amended complaint’s allegations that Plaintiff handed defendant Gutierrez legal mail on or about December 6, 2022; that defendant Gutierrez did 12 not log the mail in the logbook; that the legal mail was never sent out and never reached the courts, and that Plaintiff’s case was dismissed as a result states a cognizable First 13 Amendment claim for denial of access to the courts and denial of his right to send out mail. See Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011), overruled on other grounds 14 as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015) (“prisoners have a right under the First and Fourteenth Amendments to litigate claims challenging their 15 sentences or the conditions of their confinement to conclusion without active interference by prison officials.” (emphasis in original); see id. at 1103-04 (reversing district court and 16 finding cognizable denial of access to courts claim based on prisoner’s allegations that he was repeatedly transferred between different facilities in order to hinder his ability to 17 litigate his pending civil lawsuits, prison officials seized and withheld all his legal files, and as a result of such actions several of his pending suits were dismissed); see Witherow 18 v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (prisoners enjoy First Amendment right to send and receive mail). 19 However, the amended complaint fails to state claims for excessive punishment under the Eighth Amendment, or for denial of equal protection under the Fourteenth 20 Amendment, or for retaliation under the First Amendment. Although the amended complaint lists constitutional provisions at the top of two of the claim pages, Dkt. No. 9 at 21 3, 5, the amended complaint either fails to identify what action violated the listed constitutional provisions, and/or relies on conclusory allegations. The Court dismisses 22 these claims with leave to amend. 23 Dkt. No. 17 at 2-4 (footnote omitted). Plaintiff declined to file an amended complaint and elected 24 to proceed solely on the claim that Salinas Valley State Prison officer Gutierrez denied Plaintiff 25 his First Amendment rights to access the courts and send out mail when, on or about December 6, 26 2022, after Plaintiff handed defendant Gutierrez legal mail, defendant Gutierrez did not log 27 Plaintiff’s legal mail in the logbook; the legal mail never reached the courts; and Plaintiff’s case 1 II. Request for Judicial Notice (Dkt. No. 29) 2 Defendant has requested that the Court take judicial notice of the following court dockets 3 and records, which are attached as exhibits to their request for judicial notice (“RJN”): 4 RJN, Ex. A: PACER docket, Order to Grant IFP and Dismiss Complaint with Leave to 5 Amend (ECF No. 7), Consent to Jurisdiction of Magistrate Judge (ECF No. 6), Order to Dismiss 6 Action (ECF No. 10), and Judgment (ECF No. 11) in Sekona v. Holowitz, et al., No. 2:16-cv- 7 00608 (E.D. Cal. May 25, 2016); 8 RJN, Ex. B: PACER docket, Order to Grant IFP and Dismiss Complaint with Leave to 9 Amend (ECF No. 9), Order adopting Findings and Recommendations (ECF No. 15), Order and 10 Findings and Recommendations to Dismiss First Amended Complaint without Leave to Amend 11 (ECF No. 19), Order adopting Findings and Recommendations (ECF No. 21), and Judgment (ECF 12 No. 22) in Sekona v. Bradley, et al., No. 2:17-cv-02484 (E.D. Cal. Jun. 14, 2019); 13 RJN, Ex. C: PACER docket, Order to Grant IFP (ECF No. 6), Order and Findings and 14 Recommendations to Dismiss Complaint with Leave to Amend (ECF No. 10), Order and Findings 15 and Recommendations to Dismiss First Amended Complaint without Leave to Amend (ECF No. 16 17), Order adopting Findings and Recommendations (ECF No. 21), and Judgment (ECF No. 22) 17 in Sekona v. Trujillo, et al., No. 1:19-cv-00399 (E.D. Cal. Dec. 7, 2020); and 18 RJN, Ex. D: PACER docket, Order to Grant IFP (ECF No. 6), Order and Findings and 19 Recommendations to Dismiss Complaint with Leave to Amend (ECF No. 9), Order and Findings 20 and Recommendations to Dismiss Action (ECF No. 30), Order adopting Findings and 21 Recommendations (ECF No. 32), and Judgment (ECF No. 33) in Sekona v. Lucas, et al., No. 1:19- 22 cv-00454 (E.D. Cal. Nov. 1, 2021). 23 The Court “may take judicial notice of proceedings in other courts, both within and 24 without the federal judiciary system, if those proceedings have a direct relation to matters at 25 issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal quotation marks and 26 citations omitted) (granting request to take judicial notice in Section 1983 action of five prior 27 cases in which plaintiff was pro se litigant, to counter her argument that she deserved special 1 (9th Cir. 2014) (“It is well established that [federal courts] may take judicial notice of proceedings 2 in other courts.”). The Court therefore GRANTS Defendant’s request for judicial notice. The 3 exhibits to the RJN consist of court dockets and records reflecting Plaintiff’s litigation history, 4 which is relevant to whether Plaintiff may proceed in forma pauperis. The exhibits to the RJN are 5 also undisputed matters of public record and therefore capable of accurate and ready determination 6 by resort to sources whose accuracy cannot be reasonably questioned. United States v. Raygoza- 7 Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“court may take judicial notice of undisputed matters 8 of public record, which may include court records available through PACER”). 9 III. Motion to Revoke Plaintiff’s In Forma Pauperis Status (Dkt. No. 27) 10 A. Legal Standard 11 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 12 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 13 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 14 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 15 an action . . . in a court of the United States that was dismissed on the grounds that it is frivolous, 16 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 17 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 18 In determining whether a prior dismissal counts as a strike, the Court “should look to the 19 substance of the dismissed lawsuit, and not to how the district court labelled or styled the 20 dismissal.” Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019) (“Harris I”) (internal quotations 21 marks and citation omitted). To be counted as a strike, a case must be dismissed in its entirety as 22 frivolous, malicious or for failure to state a claim. Id. at 674. For purposes of a dismissal that 23 may be counted under Section 1915(g), the Ninth Circuit gives this guidance: The phrase “fails to 24 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 25 Procedure 12(b)(6) and apparently means the same thing. Andrews v. King, 398 F.3d 1113, 1121 26 (9th Cir. 2005) ( “Andrews I”). A case “is frivolous if it is ‘of little weight or importance: having 27 no basis in law or fact.’” Id. (citation omitted). “A case is malicious if it was filed with the 1 When the district court dismisses a complaint for failure to state a claim and grants leave to 2 amend, and the plaintiff then fails to file an amended complaint, the dismissal counts as a strike 3 under § 1915(g). Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“Harris II”). 4 “[R]epeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short and 5 plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ 28 U.S.C. § 1915(g), when 6 the opportunity to correct the pleadings has been afforded and there has been no modification 7 within a reasonable time.” Knapp v. Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013). Complaints 8 can run afoul of Rule 8(a) by (1) saying “too little,” that is, by failing to meet the Iqbal pleading 9 threshold, or (2) saying “too much.” Id. at 1108-10. “Prolix, confusing complaints . . . impose 10 unfair burdens on litigants and judges” and therefore can be properly dismissed under Rule 8. 11 McHenry v. Renne, 84 F.3d 1179–80 (9th Cir. 1996). 12 A dismissal based on immunity does not constitute a strike because § 1915(g) omits the 13 immunity language as a ground for a strike. Harris I, 935 F.3d at 675. There are rare cases where 14 immunity may be so clear on the face of the complaint that dismissal may qualify as a strike for 15 failure to state a claim, or where immunity is so obvious that the suit is frivolous and dismissal 16 counts as a strike. Id. at 676. “But these are exceptional cases where the affirmative defense is 17 readily apparent without resort to any additional information outside the four corners of the 18 complaint. Such will rarely be the case with immunity-based defenses.” Id.; see Ray v. Lara, 31 19 F.4th 692, 699 (9th Cir. 2022) (dismissal on basis of prosecutorial immunity for contents of 20 government’s appellate brief constituted strike). 21 “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should 22 be used to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing 23 an action, and other relevant information, the district court determines that the action was 24 dismissed because it was frivolous, malicious or failed to state a claim.” Andrews I, 398 F.3d at 25 1121. A district court is not required to announce in an order that its dismissal constitutes a strike 26 under Section 1915(g) for that dismissal to later count as a strike. Id. at 1119 n.8. 27 A dismissal based solely on a finding that the plaintiff previously incurred at least three 1 claim, does not count as an additional strike under § 1915(g). El-Shaddai v. Zamora, 833 F.3d 2 1036, 1042 (9th Cir. 2016). 3 The plain language of the imminent danger clause in Section 1915(g) indicates that 4 “imminent danger” is to be assessed at the time of filing of the complaint. See Andrews v. 5 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). The conditions that existed at 6 some earlier or later time are not relevant. Id. at 1053 & n.5 (post-filing transfer of prisoner out of 7 prison at which danger allegedly existed may have mooted request for injunctive relief against 8 alleged danger, but did not affect Section 1915(g) analysis). “[T]he imminent danger exception to 9 the PLRA three-strikes provision requires a nexus between the alleged imminent danger and the 10 violations of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). The 11 court “should not make an overly detailed inquiry into whether the allegations qualify for the 12 [imminent danger] exception.” Andrews II, 493 F.3d at 1055. It is sufficient if the complaint 13 “makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ 14 at the time of filing.” Id. 15 The Ninth Circuit requires that the prisoner be given notice of the potential applicability of 16 Section 1915(g), by either the district court or the defendants, but also requires the prisoner to bear 17 the ultimate burden of persuasion that Section 1915(g) does not bar in forma pauperis status for 18 him. Andrews I, 398 F.3d at 1120. Andrews I implicitly allows the Court to sua sponte raise the 19 Section 1915(g) issue, but requires the Court to notify the prisoner of the earlier dismissals it 20 considers to support a Section 1915(g) dismissal and allow the prisoner an opportunity to be heard 21 on the matter before dismissing the action. Id. A dismissal under Section 1915(g) means that a 22 prisoner cannot proceed with his action in forma pauperis under Section 1915(g). However, the 23 prisoner may still pursue his claims if he pays the full filing fee at the outset of the action. 24 B. Parties’ Arguments 25 Defendant argues that Plaintiff’s in forma pauperis status should be revoked pursuant to 28 26 U.S.C. § 1915(g) because he has filed four cases that were dismissed for failure to state a claim 27 and because he cannot establish in imminent danger of serious physical injury at the time that he 1 Section 1915(g): (1) Sekona v. Holowitz, et al., No. 2:16-cv-00608 (E.D. Cal. May 25, 2016) 2 (“Holowtiz”); (2) Sekona v. Bradley, et al., No. 2:17-cv-02484 (E.D. Cal. Jun. 14, 2019) 3 (“Bradley”); (3) Sekona v. Trujillo, et al., No. 1:19-cv-00399 (E.D. Cal. Dec. 7, 2020) (“Trujillo”); 4 and (4) Sekona v. Lucas et al., No. 1:19-cv-00454 (E.D. Cal. Nov. 1, 2021) (“Lucas”). See 5 generally Dkt. No. 27. 6 Plaintiff’s opposition is hard to follow. He appears to allege that the cases are not strikes 7 because he has satisfied his filing fee obligations in these cases and, in some cases, paid the filing 8 fee more than once; that Holowtiz does not count as a strike because it was dismissed without 9 prejudice for failure to file an amended complaint and that he was unable to file an amended 10 complaint because he was housed in the Special Housing Unit (“SHU”) and unable to access the 11 courts; that Bradley should not count as a strike because it stated a claim against Bradley for 12 corruption; that Trujillo should not count as a strike because it was dismissed because he was 13 placed in SHU, which delayed his ability to receive his legal mail; that Lucas should not count as a 14 strike because correctional officials conspired to interfere with Plaintiff’s legal works; and that in 15 forma pauperis status is governed by local rules which cannot override the federal Constitution 16 and his cases have all stated cognizable claims for violation of his constitutional rights. See 17 generally Dkt. No. 30. 18 C. Analysis 19 1. Prior Strikes 20 The Court has reviewed the four cases identified above by Defendant and find that 21 Holowitz, Bradley, and Lucas constitute strikes within the meaning of 28 U.S.C. § 1915(g), as 22 discussed in further detail below. 23 (1) Sekona v. Holowitz, et al., C No. 2:16-cv-00608 (E.D. Cal.). In Holowitz, Plaintiff 24 sued Mule Creek State Prison doctor Holowitz and four correctional officers: Custino, Angle, 25 Snow, and Charon. The complaint alleged that Plaintiff’s head concussion worsened after a June 26 2014 assault; that he suffered from various medical conditions, including heart disease, head 27 trauma, and aphasia; that he suffered a seizure in July 2014; and that doctor Holowtiz provided 1 a claim because (1) the complaint made no allegations regarding the four correctional officers; (2) 2 it appeared that the portion of the suit suing the four correctional officers was duplicative of 3 Sekona v. Custino, et al., C No. 2:16- cv-517 CMK (“Custino”), in which Plaintiff was suing all 4 four correctional officers regarding the alleged June 2014 assault; and (3) with respect to doctor 5 Holowitz, the allegations in the complaint were so vague and conclusory that it failed to state a 6 claim upon which relief can be granted. Holowitz, Dkt. No. 7 (Apr. 11, 2016). The court granted 7 Plaintiff leave to file an amended complaint. Id. Plaintiff failed to file an amended complaint by 8 the deadline provided, and the court dismissed the action without prejudice, and entered judgment 9 against Plaintiff. Holowtiz, Dkt. Nos. 10, 11 (May 25, 2016). On June 16, 2016, after the case 10 was closed, Plaintiff filed a pleading titled “Amended Complaint.” Holowitz, Dkt. No. 13. 11 Although labelled an amended complaint, the one-page pleading was not a complaint and was 12 instead a request that the court separate Sekona v. Custino, et al., C C No. 2:16- cv-517 CMK, 13 from Holowitz; that the claims against Custino, Angle, Snow, and Charon in Holowitz were not 14 duplicative of the claims brought in Custino because the claims in Holowitz were “failure to 15 provide serious medical needs deliberate indifference, violation of constitution, and failure to 16 protect serious harm.” Holowtiz, Dkt. No. 13 (Jun. 16, 2016). On June 28, 2016, Plaintiff filed a 17 three-page complaint on the court’s complaint form. In this pleading, Plaintiff identified the 18 defendant as doctor Holowitz and requested the following relief: “Money damaged relief. 19 Injunction relief. Punishment and lawyer relief.” The pleading had no factual allegations. 20 Holowitz, Dkt. No. 14 (Jun. 28, 2016). That same day, Plaintiff also filed a response to the 21 Court’s dismissal, saying that he had sent out an amended complaint on or April 25, 2016, and did 22 not receive the Court’s dismissal until June 2016; that he had been placed in administrative 23 segregation on April 3, 2016, and denied access to his legal papers ad to the law library; and that 24 he needed legal advice as to how to proceed next. Holowitz, Dkt. No. 16 (Jun. 28, 2016). On 25 November 17, 2016, the court informed Plaintiff that pleadings filed since the case was closed on 26 May 25, 2016 would be disregarded and that no orders would be issued in response to future 27 filings. The court further informed him that since the case had been dismissed without prejudice, 1 This case counts as a strike within the meaning of Section 1915(g) because it was 2 dismissed with leave to amend for failure to state a claim, and no amended complaint was filed. 3 Harris II, 863 F.3d at 1143 (“we hold that when (1) a district court dismisses a complaint on the 4 ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then 5 fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”). Plaintiff’s 6 “amended complaints” filed after the closing date do not change the analysis, because it was 7 within the district court’s inherent power to refuse to accept pleadings after the case was closed. 8 Cf. Ready Transp., Inc. v. AAR Mfg., Inc., 627 F.3d 402, 404 (9th Cir. 2010) (federal district courts 9 have “inherent power to control their docket”); Patel v. Miller, No. CV-19-0080 CBM (AFMx), 10 2021 WL 822845, at *1 (C.D. Cal. Feb. 4, 2021), aff’d as modified sub nom. Anthony A. Patel, 11 Plaintiff-Appellant, v. Patricia Miller; et al., Defendants-Appellees., No. 21-55192, 2021 WL 12 2224373 (9th Cir. May 18, 2021). Moreover, the “amended complaints” did not cure any of the 13 deficiencies identified by the court in its order dismissing the complaint with leave to amend for 14 failure to state a claim. Neither amended complaint made further allegations against the named 15 defendants. 16 (2) Sekona v. Bradley, et al., C No. 2:17-cv-02484 (E.D. Cal.). In Bradley, Plaintiff 17 sued Mule Creek State Prison correctional officers Bradley, Hang, and Santillan. Plaintiff alleged 18 that defendant Bradley retaliated against him and violated the Eighth Amendment when he (1) 19 ordered Plaintiff to submit a urine sample in December 2015 in retaliation for Plaintiff reporting 20 another inmate as a drug dealer and alcohol maker and for filing a lawsuit regarding an 21 undescribed June 27, 2014 incident; (2) issued a false rules violation report when Plaintiff did not 22 want to provide a urine sample; and (3) conducted a nude search of Plaintiff and had Plaintiff wait 23 for about 3 hours outside in 30-degree weather for his urine test. Plaintiff alleged that defendant 24 Hang was appointed Plaintiff’s employee assistant for the administrative hearing for the RVR 25 issued by defendant Bradley but did not nothing to help Plaintiff, in violation of the due process 26 clause. Plaintiff alleged that defendant Santillan violated his right to due process when she found 27 him guilty of the RVR issued by defendant Bradley, refused to call any of his witnesses at the 1 process claims for failure to state a claim as a matter: (1) the due process claim against defendant 2 Bradley for issuing a false RVR; and (2) the due process claim against defendant Santillan arising 3 out of the failure to delay the hearing. The court dismissed defendant Hang with prejudice 4 because court records indicated that this action was duplicative of C No. 2:17-cv-00346 KJM 5 EFB, Sekona v. Lizarraga, in which Plaintiff had sued defendant Hang for failing to provide 6 Plaintiff assistance at a December 2015 disciplinary hearing. The court dismissed the due process 7 claim against defendant Santillan arising out of the failure to call witnesses because the allegation 8 was vague and conclusory, but granted Plaintiff leave to amend this claim. The court dismissed 9 the retaliation and Eighth Amendment claims against defendant Bradley because the allegations 10 were too conclusory to be cognizable, but granted Plaintiff leave to amend these claims. Bradley, 11 Dkt. No. 9 (May 23, 2018) (findings and recommendations); Dkt. No. 15 (Sept. 4, 2018) (order 12 adopting findings and recommendations). Plaintiff filed a first amended complaint, which the 13 court dismissed for failure to state a claim, finding that Plaintiff had failed to cure any of the 14 deficiencies identified in the original complaint with respect to either Bradley or Santillan. The 15 court dismissed the complaint with prejudice, finding that Plaintiff’s failure to correct the 16 deficiencies despite being given clear instructions and an opportunity to amend indicated that 17 further opportunities to amend would be futile. Bradley, Dkt. No. 19 (Apr. 18, 2018) (findings 18 and recommendations); Dkt. No. 21 (Jun. 14, 2019) (order adopting findings and 19 recommendations). 20 This order counts as a strike pursuant to Section 1915(g) because the case was dismissed in 21 its entirety for failure to state a claim. 28 U.S.C. § 1915(g). 22 (3) Sekona v. Lucas et al., No. 1:19-cv-00454 (E.D. Cal.). In Lucas, Plaintiff sued 23 Kern Valley State Prison correctional officers Lucas, Gonzales, Hancock, and Robles. On June 24 29, 2020, the court dismissed the complaint because (1) the complaint violated Fed. R. Civ. P. 8’s 25 requirement of a short and plain statement of the claim; (2) the complaint pursued damages claims 26 against Defendants in their official capacities, which is barred by the Eleventh Amendment; (3) 27 the complaint sought to hold some defendants liable based on their processing of his grievance, 1 for access to the courts or for a due process violation; (4) the complaint’s claims relating to loss of 2 personal property failed to state a due process claim as a matter of law; (5) the complaint’s mail 3 claim failed to state a claim because the complaint did not allege the requisite actual injury; (6) the 4 due process claim arising out of Plaintiff’s RVR hearing failed to state a claim because the 5 subsequent placement in administrative segregation and related property and health problems did 6 not implicate a liberty interest; (7) the equal protection claim failed as a matter of law because the 7 complaint failed to plead facts indicating that he or other inmates who spoke English as a second 8 language were purposely discriminated against for that reason by any of the defendants; (8) the 9 retaliation claims failed as a matter of law because the allegations were conclusory and there were 10 not allegations that Defendants took adverse action because of Plaintiff’s First Amendment 11 activity, as required for a First Amendment retaliation claim; (9) the state law claims failed to state 12 cognizable Section 1983 claims as a matter of law because supplemental jurisdiction can only be 13 exercised where there are cognizable federal claims and the complaint had not alleged any such 14 claims; and (10) the mail claim failed to state a First Amendment violation as a matter of law 15 because none of the correspondence was between Plaintiff and his attorney. The court granted 16 Plaintiff leave to file an amended complaint to correct the identified deficiencies. Lucas, Dkt. No. 17 9 (Jun. 29, 2020). The court granted Plaintiff nine extensions of time to file an amended 18 complaint. Lucas, Dkt. Nos. 11, 13, 15, 17, 19, 21, 23, 25, 27. On September 20, 2021, the court 19 denied Plaintiff’s tenth request for an extension of time to file the amended complaint because 20 Plaintiff had already been granted “an excessive amount of time” – fourteen months – within 21 which to file an amended complaint; Plaintiff proffered the same reasons for each request; and 22 Plaintiff had been able to file a second amended complaint on April 21, 2021, in another one of his 23 pending cases. Lucas, Dkt. No. 29 (Sept. 20, 2021). On November 1, 2021, the court dismissed 24 this action without prejudice for failure to comply with the Court’s Jun. 29, 2020 order to file an 25 amended complaint that addressed the identified deficiencies. Lucas, Dkt. No. 32. 26 This case counts as a strike pursuant to Section 1915(g). See Harris II, 863 F.3d at 1142- 27 43 (dismissal with leave to amend for failure to state claim constituted a strike, where plaintiff 1 Plaintiff’s arguments misunderstand what constitutes a strike within the meaning of 2 Section 1915(g). Section 1915(g) provides that a case constitutes a strike if was dismissed on the 3 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted. 4 The Ninth Circuit has further clarified that to be counted as a strike, a case must be dismissed in 5 its entirety as frivolous, malicious or for failure to state a claim; and the phrase “fails to state a 6 claim on which relief may be granted” parallels the language of Fed. R. Civ. P. 12(b)(6). Harris I, 7 935 F.3d at 674. 8 Plaintiff argues that these cases did not count as strikes because he paid the filing fee for 9 these cases. However, neither a court’s acceptance of the filing fee nor an inmate’s payment of 10 the filing fee nullifies a court’s conclusion that the complaint failed to state a claim. The 11 obligation to pay the filing fee is independent of whether the complaint states a claim. Any 12 litigant who files a civil action in federal district court is required to pay a $350 filing fee and a 13 $52 administrative fee. 28 U.S.C § 1914. Prisoners who are granted leave to proceed in forma 14 pauperis need not pay the $52 administrative fee and need not pay the filing fee prior to 15 commencing the action. See 28 U.S.C. § 1915(b)(1). In forma pauperis status allows the prisoner 16 to pay the filing fee in installments, but does not excuse a prisoner from paying the full filing fee 17 or otherwise waive the filing fee. In forma pauperis status waives the administrative fee for the 18 prisoner; allows the prisoner to proceed with the action without paying the full filing fee prior to 19 the commencement of the action; and allows the prisoner to fulfill his or her filing fee obligation 20 in installments, as set forth in detail in 28 U.S.C. § 1915(b)(1). But the prisoner is still responsible 21 for paying the full $350 filing fee. 22 Plaintiff appears to argue that some of these cases do not count as strikes because they 23 were dismissed because he failed to file an amended complaint, and his inability to file an 24 amended complaint was due to his confinement in SHU where he had no access to his legal 25 papers, the law library, the mail, and writing supplies. The essence of this argument is that 26 Plaintiff could have stated a cognizable claim if he had not been prevented from filing an amended 27 complaint by prison officials, his housing placement, or the limitations of incarceration. The 1 dismissed, neither of which stated a claim for relief. Even if the Holowitz court had reopened the 2 case and screened these two amended complaints, Holowitz would still have been dismissed for 3 failure to state a claim. In Bradley, Plaintiff was able to file an amended complaint, but that 4 amended complaint failed to address the identified deficiencies in the initial complaint and also 5 failed to state a claim. In Lucas, Plaintiff’s inability to file an amended complaint was not due to 6 any limitations in prison, as he filed a second amended complaint in a different case during the 7 year he was given to file his amended complaint in Lucas. 8 Plaintiff also appears to argue that these cases were erroneously dismissed for failure to 9 state a claim, and insists that these cases have all stated cognizable claims for violation of his 10 constitutional rights. The Court has reviewed these cases in detail, and finds no support for 11 Plaintiff’s claim that these cases were erroneously dismissed. 12 Plaintiff’s claim that the rules governing in forma pauperis status are local rules which 13 cannot override the federal Constitution is incorrect. The law governing in forma pauperis status 14 is a federal law, specifically 28 U.S.C. § 1915(g), and this federal law requires the denial of in 15 forma pauperis status to prisoners who have brought three or more cases dismissed for failure to 16 state a claim. 28 U.S.C. § 1915(g). 17 2. Imminent Danger Exception 18 Plaintiff does not allege that he was in imminent danger at the time he filed the complaint, 19 and the operative complaint does not suggest that Plaintiff faced imminent danger of serious 20 physical injury. The operative complaint’s factual allegations do not concern or suggest physical 21 injury and concerns events that happened a year prior to this action being commenced. The 22 operative complaint alleges that, on December 6, 2022, Plaintiff handed defendant Gutierrez legal 23 mail to be mailed out, but defendant Gutierrez did not log Plaintiff’s legal mail in the logbook; the 24 legal mail never reached the courts; and Plaintiff’s case was dismissed as a result. See generally 25 Dkt. No. 9. 26 Accordingly, because Plaintiff has had three cases dismissed for failure to state a claim and 27 was not in imminent danger of serious physical injury at the time he filed this complaint, 28 1 IV. Motion to Stay Dispositive Motion Deadline (Dkt. No. 28) 2 Defendant requests that the Court stay the January 11, 2025 dispositive motion deadline 3 || pending the Court’s resolution of Defendant’s motion to revoke Plaintiff's in forma pauperis 4 || status. The Court GRANTS nunc pro tunc Defendant’s request to stay the January 11, 2025 5 || dispositive motion deadline. The Court VACATES the current briefing schedule. The Court shall 6 || set a briefing schedule after Plaintiff pays the filing fee in full. 7 CONCLUSION 8 For the reasons set forth above, the Court ORDERS as follows. 9 1. The Court GRANTS Defendant’s Request for Judicial Notice. Dkt. No. 29. 10 2. The Court GRANTS Defendant’s request to revoke Plaintiff's in forma pauperis 11 status. Dkt. No. 27. The Court REVOKES Plaintiff's in forma pauperis status pursuant to 28 12 |} U.S.C. § 1915(g). Plaintiff may proceed with this action only if he pays the $402 filing and 5 13 administrative fee in full. Plaintiff must pay the full filing and administrative fee within twenty- 14 eight (28) days of the date of this order. If the full filing fee is not received by that date, the Court 3 15 || will dismiss this action without prejudice to Plaintiff re-filing upon payment of the full filing fee. a 16 3. The Court GRANTS nunc pro tunc Defendant’s request to stay the January 11, 3 17 || 2025 dispositive motion deadline. Dkt. No. 28. The Court VACATES the current briefing S 18 schedule. The Court shall set a briefing schedule after Plaintiff pays the filing fee in full. 19 This order terminates Dkt. Nos. 27, 28, 29. 20 IT IS SO ORDERED. 21 || Dated: 3/4/2025 22 Abeipeerl 5 Ade) HAYWOOD S. GILLIAM, JR. 23 United States District Judge 24 25 26 27 28