1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ANDRE KENNETH STUCKEY, 4 Case No. 20-cv-07344-YGR (PR) Plaintiff, 5 ORDER REOPENING ACTION; AND v. DIRECTING PLAINTIFF TO SHOW 6 CAUSE WHY (1) HIS IFP STATUS PEOPLE[’S] REPUBLIC OF CHINA, et al., SHOULD NOT BE DENIED AND 7 (2) THIS ACTION SHOULD NOT BE Defendants. DISMISSED PURSUANT TO 28 U.S.C. 8 § 1915
9 I. BACKGROUND 10 This federal civil rights action was dismissed on December 15, 2020 because Plaintiff 11 failed to perfect his application to proceed in forma pauperis (“IFP”). Dkt. 7. He since has 12 perfected his IFP application (Dkts. 12, 15), and he has filed a motion to reopen (Dkt. 10). The 13 Court GRANTS Plaintiff’s motion to reopen, and the action is REOPENED. 14 On October 20, 2020, Plaintiff Andre Kenneth Stuckey, a state prisoner currently 15 incarcerated at Pelican Bay State Prison (“PBSP”), filed the present pro se prisoner “Class Action 16 Complaint” on behalf of himself and additional Plaintiffs, who are also inmates at PBSP, 17 purporting to represent all “incarcerated inmates in the State of California for damages and 18 equitable relief suffered as a result of the Coronavirus pandemic, against the Defendants, the 19 People’s Republic of China . . . .” Dkt. 1 at 2.1 In its December 15, 2020 Order, the Court denied 20 Plaintiff’s motion for certification of a class action. Dkt. 7 at 1-2. The additional named 21 Plaintiffs, who were all inmates at PBSP, were dismissed as Plaintiffs from this action without 22 prejudice. Id. 23 As mentioned, Plaintiff seeks leave to proceed IFP. Dkts. 12, 15. 24 In one of Plaintiff’s other pending actions, Stuckey v. Sturdevant, No. 20-cv-01898 (N.D. 25 Cal.), Defendant PBSP Correctional Officer C. Sturdevant filed a motion to revoke Plaintiff’s IFP 26 status, pursuant to 28 U.S.C. § 1915(g). See Dkt. 13 in Case No. 20-cv-01898. 27 1 Having read and considered the papers submitted in Case No. 20-cv-01898, and being fully 2 informed, the Court directs Plaintiff to show cause why his IFP status should not be denied in this 3 action and why it should not be dismissed pursuant to 28 U.S.C. § 1915(g) 4 II. DISCUSSION 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 Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as 12 after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 13 Section 1915(g) is commonly referred to as the “three strikes rule.” The three strikes rule 14 “requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts 15 may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 16 2001). 17 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 18 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 19 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 20 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 21 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 22 1121 (9th Cir. 2005) (citation omitted) (“Andrews I”). Only cases within one of these three 23 categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action 24 under section 1915(g) should only occur when, “after careful evaluation of the order dismissing an 25 [earlier] action, and other relevant information, the district court determines that the action was 26 dismissed because it was frivolous, malicious or failed to state a claim.” Id. 27 Andrews I requires that the prisoner be given notice of the potential applicability of 1 the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id. A 2 defendant seeking to challenge a prisoner’s IFP status has the burden of producing evidence that 3 allows the district court to conclude that the prisoner plaintiff has suffered at least three prior 4 dismissals that count as strikes under section 1915(g). Id. at 1120. Once the defendants have met 5 this initial burden, the burden shifts to the prisoner to show why a prior dismissal should not count 6 as a strike, or why he is entitled to the imminent danger of serious physical injury exception. Id. 7 A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as 8 a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at 9 the outset of the action. See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming 10 district court’s denial of IFP status and dismissing complaint without prejudice under section 11 1915(g)). 12 A review of the dismissal orders in Plaintiff’s prior prisoner actions in this Court and in the 13 United States District Court for the Central District of California reveals that Plaintiff has had at 14 least three cases dismissed on the ground that they were frivolous, malicious, or failed to state a 15 claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the 16 following dismissals may be counted as dismissals for purposes of section 1915(g): (1) Stuckey v. 17 Grebinski, No. 2:12-cv-06875 (C.D. Cal.) (district judge of the Central District adopted the 18 magistrate judge’s findings and recommendations and denied Plaintiff’s request to proceed IFP 19 because the complaint was frivolous); (2) Stuckey v. Grebinski, No. 2:12-cv-08438 (C.D. Cal.) 20 (same); and (3) Stuckey v. Trump, et al., Case No. 19-cv-03688 (N.D. Cal.) (civil rights action 21 dismissed for failure to state a claim). See Dkt. 13 at 2-3; Dkt. 13-1 at 4-21 (Exs. A-C) in Case 22 No. 20-cv-01898. In Case No. 20-cv-01898, the Court has reviewed all three dismissals in the 23 aforementioned cases (which were all entered before the instant action was brought by Plaintiff on 24 August 21, 2020), and it has determined that they may be counted as dismissals for purposes of 25 section 1915(g). Plaintiff therefore may proceed IFP only if he is seeking relief from a danger of 26 serious physical injury which is “imminent” at the time of filing the instant action. See Abdul- 27 Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1 O’Guin, 144 F.3d 883, 885 (Sth Cir. 1998). He is not. 2 || I.
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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 ANDRE KENNETH STUCKEY, 4 Case No. 20-cv-07344-YGR (PR) Plaintiff, 5 ORDER REOPENING ACTION; AND v. DIRECTING PLAINTIFF TO SHOW 6 CAUSE WHY (1) HIS IFP STATUS PEOPLE[’S] REPUBLIC OF CHINA, et al., SHOULD NOT BE DENIED AND 7 (2) THIS ACTION SHOULD NOT BE Defendants. DISMISSED PURSUANT TO 28 U.S.C. 8 § 1915
9 I. BACKGROUND 10 This federal civil rights action was dismissed on December 15, 2020 because Plaintiff 11 failed to perfect his application to proceed in forma pauperis (“IFP”). Dkt. 7. He since has 12 perfected his IFP application (Dkts. 12, 15), and he has filed a motion to reopen (Dkt. 10). The 13 Court GRANTS Plaintiff’s motion to reopen, and the action is REOPENED. 14 On October 20, 2020, Plaintiff Andre Kenneth Stuckey, a state prisoner currently 15 incarcerated at Pelican Bay State Prison (“PBSP”), filed the present pro se prisoner “Class Action 16 Complaint” on behalf of himself and additional Plaintiffs, who are also inmates at PBSP, 17 purporting to represent all “incarcerated inmates in the State of California for damages and 18 equitable relief suffered as a result of the Coronavirus pandemic, against the Defendants, the 19 People’s Republic of China . . . .” Dkt. 1 at 2.1 In its December 15, 2020 Order, the Court denied 20 Plaintiff’s motion for certification of a class action. Dkt. 7 at 1-2. The additional named 21 Plaintiffs, who were all inmates at PBSP, were dismissed as Plaintiffs from this action without 22 prejudice. Id. 23 As mentioned, Plaintiff seeks leave to proceed IFP. Dkts. 12, 15. 24 In one of Plaintiff’s other pending actions, Stuckey v. Sturdevant, No. 20-cv-01898 (N.D. 25 Cal.), Defendant PBSP Correctional Officer C. Sturdevant filed a motion to revoke Plaintiff’s IFP 26 status, pursuant to 28 U.S.C. § 1915(g). See Dkt. 13 in Case No. 20-cv-01898. 27 1 Having read and considered the papers submitted in Case No. 20-cv-01898, and being fully 2 informed, the Court directs Plaintiff to show cause why his IFP status should not be denied in this 3 action and why it should not be dismissed pursuant to 28 U.S.C. § 1915(g) 4 II. DISCUSSION 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 Section 1915(g) requires that this Court consider prisoner actions dismissed before, as well as 12 after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 13 Section 1915(g) is commonly referred to as the “three strikes rule.” The three strikes rule 14 “requires so-called ‘frequent filer’ prisoners to prepay the entire filing fee before federal courts 15 may consider their civil actions and appeals.” Kinnell v. Graves, 265 F.3d 1125, 1127 (10th Cir. 16 2001). 17 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 18 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 19 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 20 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 21 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 22 1121 (9th Cir. 2005) (citation omitted) (“Andrews I”). Only cases within one of these three 23 categories can be counted as strikes for section 1915(g) purposes. See id. Dismissal of an action 24 under section 1915(g) should only occur when, “after careful evaluation of the order dismissing an 25 [earlier] action, and other relevant information, the district court determines that the action was 26 dismissed because it was frivolous, malicious or failed to state a claim.” Id. 27 Andrews I requires that the prisoner be given notice of the potential applicability of 1 the ultimate burden of persuasion that section 1915(g) does not bar pauper status for him. Id. A 2 defendant seeking to challenge a prisoner’s IFP status has the burden of producing evidence that 3 allows the district court to conclude that the prisoner plaintiff has suffered at least three prior 4 dismissals that count as strikes under section 1915(g). Id. at 1120. Once the defendants have met 5 this initial burden, the burden shifts to the prisoner to show why a prior dismissal should not count 6 as a strike, or why he is entitled to the imminent danger of serious physical injury exception. Id. 7 A dismissal under section 1915(g) means that a prisoner cannot proceed with his action as 8 a pauper under section 1915(g), but he still may pursue his claims if he pays the full filing fee at 9 the outset of the action. See Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming 10 district court’s denial of IFP status and dismissing complaint without prejudice under section 11 1915(g)). 12 A review of the dismissal orders in Plaintiff’s prior prisoner actions in this Court and in the 13 United States District Court for the Central District of California reveals that Plaintiff has had at 14 least three cases dismissed on the ground that they were frivolous, malicious, or failed to state a 15 claim upon which relief may be granted. Plaintiff is now given notice that the Court believes the 16 following dismissals may be counted as dismissals for purposes of section 1915(g): (1) Stuckey v. 17 Grebinski, No. 2:12-cv-06875 (C.D. Cal.) (district judge of the Central District adopted the 18 magistrate judge’s findings and recommendations and denied Plaintiff’s request to proceed IFP 19 because the complaint was frivolous); (2) Stuckey v. Grebinski, No. 2:12-cv-08438 (C.D. Cal.) 20 (same); and (3) Stuckey v. Trump, et al., Case No. 19-cv-03688 (N.D. Cal.) (civil rights action 21 dismissed for failure to state a claim). See Dkt. 13 at 2-3; Dkt. 13-1 at 4-21 (Exs. A-C) in Case 22 No. 20-cv-01898. In Case No. 20-cv-01898, the Court has reviewed all three dismissals in the 23 aforementioned cases (which were all entered before the instant action was brought by Plaintiff on 24 August 21, 2020), and it has determined that they may be counted as dismissals for purposes of 25 section 1915(g). Plaintiff therefore may proceed IFP only if he is seeking relief from a danger of 26 serious physical injury which is “imminent” at the time of filing the instant action. See Abdul- 27 Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1 O’Guin, 144 F.3d 883, 885 (Sth Cir. 1998). He is not. 2 || I. CONCLUSION 3 For the reasons outlined above, the Court orders as follows: 4 1. The Court GRANTS Plaintiff's motion to reopen, and the Clerk of the Court shall 5 REOPEN the file. Dkt. 10. The Clerk is directed to modify the docket accordingly. The 6 || judgment (Dkt. 8) and the Order of Dismissal (Dkt. 7) are VACATED. 7 2. In light of the three dismissals outlined above, and because Plaintiff does not 8 appear to be under imminent danger of serious physical injury, he is ORDERED TO SHOW 9 CAUSE in writing no later than twenty-eight (28) days from the date of this Order why his IFP 10 status should not be denied and this action should not be dismissed pursuant to 28 U.S.C. 11 § 1915(g). If Plaintiff is so inclined, he may avoid dismissal by paying the $350.00 filing fee. In 12 any event, the Court will continue to review under section 1915(g) all future actions filed by 13 Plaintiff while he is incarcerated in which he seeks IFP status. 14 Failure to file a timely response or failure to pay the full filing fee will result in the 3 15 || dismissal of this action without further notice to Plaintiff. a 16 3. Plaintiff's motion for certification of a class action has already been denied in the 3 17 Court’s December 15, 2020 Order, and therefore his newly-filed motion for certification of a class 18 action is DENIED as moot. Dkt. 14. 19 4. This Order terminates Docket Nos. 10 and 14. 20 IT IS SO ORDERED. 21 Dated: March 1, 2021 22 aeeet Hap of Caco J E YVONNE GONZALEZ ROGERS 23 nited States District Judge 24 25 26 27 28