1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY DEWAYNE LEE TURNER, Case No. 21-cv-01525-EMC
8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. PAUPER STATUS SHOULD NOT BE REVOKED 10 MAYA PALEY, et al., Docket No. 2 11 Defendants.
12 13 14 Anthony Dewayne Lee Turner, an inmate at Mule Creek State Prison in Ione, California, 15 filed this pro se civil rights action under 42 U.S.C. § 1983. Docket No. 1 (“Complaint”). The 16 Court reviewed the Complaint pursuant to 28 U.S.C. § 1915A, and dismissed it with leave to 17 amend. See Docket No. 7. In a separate order, the Court granted Mr. Turner’s motion to proceed 18 in forma pauperis. See Docket No. 6. 19 It now has come to the Court’s attention that Mr. Turner has had more than three prior 20 cases dismissed as “strikes” under 28 U.S.C § 1915(g). The Court therefore orders Mr. Turner to 21 show cause why his in forma pauperis status should not be revoked. 22 A. Legal Standard 23 In 1996, Congress decided that a prisoner may not bring a civil action in forma pauperis 24 under 28 U.S.C. § 1915,
25 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 26 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 27 be granted, unless the prisoner is under imminent danger of serious 1 28 U.S.C. § 1915(g). Section 1915(g) requires that the court consider prisoner actions dismissed 2 before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 3 (9th Cir. 1997). Relying on the statute’s command that “in no event” may such a prisoner 4 proceed, the Ninth Circuit explained that this bar is triggered by a prisoner’s history of filing 5 frivolous litigation rather than by the merits of the current action. See El-Shaddai v. Zamora, 833 6 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original). 7 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state 8 a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure 9 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little 10 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case 11 “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th 12 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 13 strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not 14 alone warrant dismissal of the present action under § 1915(g). See Andrews, 398 F.3d at 1121. 15 Rather, dismissal of an action under § 1915(g) should only occur when, “after careful evaluation 16 of the order dismissing an [earlier] action, and other relevant information, the district court 17 determines that the action was dismissed because it was frivolous, malicious or failed to state a 18 claim.” Andrews, 398 F.3d at 1121. 19 B. Mr. Turner Has Three Strikes 20 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g), 21 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 22 burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at 23 1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires 24 the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g) 25 dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the 26 action. Andrews, 398 F.3d at 1120. A dismissal under § 1915(g) means that a prisoner cannot 27 proceed with his action as a pauper under § 1915, but he still may pursue his claims if he pays the 1 Mr. Turner is now given notice that the Court believes the following dismissals may be 2 counted as dismissals for purposes of § 1915(g): 3 1. Turner v. Rosenfeld, Case No. CIV-S-11-0622-EFB-P (E.D. Cal. April 6, 2012) 4 (“Rosenfeld I”) (order dismissing complaint for failure to state a claim); 5 2. Turner v. Rosenfeld, Case No. 2:18-CV-2796-TLN-DMC (E.D. Cal. Jan. 7, 2019) 6 (“Rosenfeld II)” (order dismissing complaint as Heck-barred on its face); 7 3. Turner v. Napa State Hospital, Case No. 19-cv-00318-EMC (N.D. Cal. Dec. 18, 8 2019) (“Napa State Hospital”) (order dismissing complaint, after a chance to 9 amend, for failure to state a claim); and 10 4. Turner v. Sacramento City Police, Case No. 19-0417-CKD-P (E.D. Cal. May 11, 11 2020) (“Sacramento City Police”) (order dismissing complaint, after a chance to 12 amend, as Heck-barred on its face and for failure to state a claim). 13 The Court evaluated these cases based on the dismissal orders and docket sheets in them. 14 See Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime 15 the actual court files may need to be consulted). Having evaluated these cases, the Court 16 concludes that each of these dismissals counts as a strike. As to Mr. Turner’s Rosenfeld I, Napa 17 State Hospital, and Sacramento City Police actions, it is well-established that a dismissal for 18 failure to state a claim constitutes a strike. See 28 U.S.C. § 1915(g) (an action “dismissed on the 19 grounds that it . . . fails to state a claim upon which relief may be granted” is a strike); Moore v. 20 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (same). 21 As to Mr. Turner’s Rosenfeld II and Sacramento City Police actions, the Ninth Circuit has 22 concluded that a dismissal counts as a strike where an affirmative defense, such as a Heck bar, is 23 apparent on the face of the complaint. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 24 F.3d 1048, 1055-57 (9th Cir. 2016); see also Irby v. Gilbert, No. 16-35373, 2016 WL 11618605, 25 at *1 (9th Cir. Nov. 14, 2016) (acknowledging this holding). 26 Because of his lengthy history of filing frivolous actions, Mr. Turner simply is not entitled 27 to proceed in forma pauperis. 1 C. Mr. Turner Is Not In Imminent Danger 2 Despite having accrued three strikes pursuant to section 1915(g), a plaintiff may still be 3 able to proceed IFP if he can show that he is in imminent danger of serious physical injury. The 4 plaintiff has the burden of proving that he satisfies this exception by demonstrating that he is in 5 imminent danger of serious physical injury. The plain language of the imminent danger clause 6 indicates that “imminent danger” is to be assessed at the time of the filing of the complaint. See 7 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). It is sufficient if the 8 complaint “makes a plausible allegation that the prisoner faced ‘imminent danger of serious 9 physical injury’ at the time of filing.” Id.; see, e.g., id.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANTHONY DEWAYNE LEE TURNER, Case No. 21-cv-01525-EMC
8 Plaintiff, ORDER TO SHOW CAUSE WHY 9 v. PAUPER STATUS SHOULD NOT BE REVOKED 10 MAYA PALEY, et al., Docket No. 2 11 Defendants.
12 13 14 Anthony Dewayne Lee Turner, an inmate at Mule Creek State Prison in Ione, California, 15 filed this pro se civil rights action under 42 U.S.C. § 1983. Docket No. 1 (“Complaint”). The 16 Court reviewed the Complaint pursuant to 28 U.S.C. § 1915A, and dismissed it with leave to 17 amend. See Docket No. 7. In a separate order, the Court granted Mr. Turner’s motion to proceed 18 in forma pauperis. See Docket No. 6. 19 It now has come to the Court’s attention that Mr. Turner has had more than three prior 20 cases dismissed as “strikes” under 28 U.S.C § 1915(g). The Court therefore orders Mr. Turner to 21 show cause why his in forma pauperis status should not be revoked. 22 A. Legal Standard 23 In 1996, Congress decided that a prisoner may not bring a civil action in forma pauperis 24 under 28 U.S.C. § 1915,
25 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 26 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 27 be granted, unless the prisoner is under imminent danger of serious 1 28 U.S.C. § 1915(g). Section 1915(g) requires that the court consider prisoner actions dismissed 2 before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 3 (9th Cir. 1997). Relying on the statute’s command that “in no event” may such a prisoner 4 proceed, the Ninth Circuit explained that this bar is triggered by a prisoner’s history of filing 5 frivolous litigation rather than by the merits of the current action. See El-Shaddai v. Zamora, 833 6 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original). 7 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state 8 a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure 9 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little 10 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case 11 “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th 12 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 13 strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not 14 alone warrant dismissal of the present action under § 1915(g). See Andrews, 398 F.3d at 1121. 15 Rather, dismissal of an action under § 1915(g) should only occur when, “after careful evaluation 16 of the order dismissing an [earlier] action, and other relevant information, the district court 17 determines that the action was dismissed because it was frivolous, malicious or failed to state a 18 claim.” Andrews, 398 F.3d at 1121. 19 B. Mr. Turner Has Three Strikes 20 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g), 21 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 22 burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at 23 1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires 24 the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g) 25 dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the 26 action. Andrews, 398 F.3d at 1120. A dismissal under § 1915(g) means that a prisoner cannot 27 proceed with his action as a pauper under § 1915, but he still may pursue his claims if he pays the 1 Mr. Turner is now given notice that the Court believes the following dismissals may be 2 counted as dismissals for purposes of § 1915(g): 3 1. Turner v. Rosenfeld, Case No. CIV-S-11-0622-EFB-P (E.D. Cal. April 6, 2012) 4 (“Rosenfeld I”) (order dismissing complaint for failure to state a claim); 5 2. Turner v. Rosenfeld, Case No. 2:18-CV-2796-TLN-DMC (E.D. Cal. Jan. 7, 2019) 6 (“Rosenfeld II)” (order dismissing complaint as Heck-barred on its face); 7 3. Turner v. Napa State Hospital, Case No. 19-cv-00318-EMC (N.D. Cal. Dec. 18, 8 2019) (“Napa State Hospital”) (order dismissing complaint, after a chance to 9 amend, for failure to state a claim); and 10 4. Turner v. Sacramento City Police, Case No. 19-0417-CKD-P (E.D. Cal. May 11, 11 2020) (“Sacramento City Police”) (order dismissing complaint, after a chance to 12 amend, as Heck-barred on its face and for failure to state a claim). 13 The Court evaluated these cases based on the dismissal orders and docket sheets in them. 14 See Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime 15 the actual court files may need to be consulted). Having evaluated these cases, the Court 16 concludes that each of these dismissals counts as a strike. As to Mr. Turner’s Rosenfeld I, Napa 17 State Hospital, and Sacramento City Police actions, it is well-established that a dismissal for 18 failure to state a claim constitutes a strike. See 28 U.S.C. § 1915(g) (an action “dismissed on the 19 grounds that it . . . fails to state a claim upon which relief may be granted” is a strike); Moore v. 20 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (same). 21 As to Mr. Turner’s Rosenfeld II and Sacramento City Police actions, the Ninth Circuit has 22 concluded that a dismissal counts as a strike where an affirmative defense, such as a Heck bar, is 23 apparent on the face of the complaint. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 24 F.3d 1048, 1055-57 (9th Cir. 2016); see also Irby v. Gilbert, No. 16-35373, 2016 WL 11618605, 25 at *1 (9th Cir. Nov. 14, 2016) (acknowledging this holding). 26 Because of his lengthy history of filing frivolous actions, Mr. Turner simply is not entitled 27 to proceed in forma pauperis. 1 C. Mr. Turner Is Not In Imminent Danger 2 Despite having accrued three strikes pursuant to section 1915(g), a plaintiff may still be 3 able to proceed IFP if he can show that he is in imminent danger of serious physical injury. The 4 plaintiff has the burden of proving that he satisfies this exception by demonstrating that he is in 5 imminent danger of serious physical injury. The plain language of the imminent danger clause 6 indicates that “imminent danger” is to be assessed at the time of the filing of the complaint. See 7 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). It is sufficient if the 8 complaint “makes a plausible allegation that the prisoner faced ‘imminent danger of serious 9 physical injury’ at the time of filing.” Id.; see, e.g., id. at 1055 (allegation that plaintiff was at risk 10 of contracting HIV or hepatitis C was sufficient to bring his complaint within the imminent danger 11 exception); cf. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (no ongoing danger 12 where plaintiff had been placed in administrative segregation following physical assaults and 13 before he filed his complaint). In this circuit, “requiring a prisoner to allege[] an ongoing danger 14 . . . is the most sensible way to interpret the imminency requirement.” Andrews II, 493 F.3d at 15 1056 (internal quotation marks omitted). 16 In addition, “the imminent danger exception to § 1915(g) requires a nexus between the 17 alleged imminent danger and a prisoner's complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 18 2022). To qualify under the imminent danger exception, “a three-strikes prisoner must allege 19 imminent danger of serious physical injury that is both fairly traceable to unlawful conduct alleged 20 in his complaint and redressable by the court.” Id. 21 Here, Mr. Turner claimed that he received inadequate medical treatment while incarcerated 22 at SQSP in 2020, where he briefly was prescribed a medication to which he was allergic. See 23 generally, Compl. The Complaint sues medical providers at SQSP, as well as Napa State Hospital 24 and Atascadero State Hospital. See id. at 1-2. However, the Complaint reveals that by the time of 25 Mr. Turner filed this action in 2021, he was incarcerated at Mule Creek State Prison. See id. at 1. 26 Because the allegedly inadequate treatment had already been rendered at the time of filing, and 27 Mr. Turner was no longer before the allegedly indifferent medical team(s) at the time of filing, it is 1 Accordingly, Mr. Turner does not qualify for the imminent danger exception. 2 D. Conclusion 3 In light of these dismissals, and because Mr. Turner does not appear to be under imminent 4 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 5 than November 4, 2022, why in forma pauperis status should not be revoked and this action 6 should not be dismissed pursuant to 28 U.S.C. § 1915(g). 7 In the alternative to showing cause why the action should not be dismissed, Mr. Turner 8 may avoid dismissal by paying the filing fee by the deadline. 9 10 IT IS SO ORDERED. 11 12 Dated: October 5, 2022 13 14 ______________________________________ EDWARD M. CHEN 15 United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27