Moon v. Brown et al

Northern District of California, cand-4:2015-cv-01228

ORDER TO SHOW CAUSE WHY PAUPER STATUS SHOULD NOT BE DENIEDShow Cause Response due by 7/27/2015.(Motions terminated: {{2}} Ex Parte Application and {{5}} MOTION for Leave to Proceed in forma pauperis). Signed by Judge Haywood S. Gilliam, Jr. on 6/29/2015.

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ADRIAN MOON, 7 Case No. 15-cv-01228-HSG (PR) Plaintiff, 8 ORDER TO SHOW CAUSE WHY v. PAUPER STATUS SHOULD NOT BE 9 DENIED EDMUND G. BROWN, et al., 10 Re: Dkt. Nos. 2, 5 Defendants. 11 12 Northern District of California United States District Court 13 Adrian Moon, a prisoner at Chuckawalla Valley State Prison in Blythe, California filed a 14 pro se civil rights complaint under 42 U.S.C. § 1983, and applied to proceed in forma pauperis 15 under 28 U.S.C. § 1915. 16 A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 "if the 17 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 18 an action or appeal in a court of the United States that was dismissed on the grounds that it is 19 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 20 is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Section 1915(g) 21 requires that this court consider prisoner actions dismissed before, as well as after, the statute's 22 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 23 For purposes of a dismissal that may be counted under § 1915(g), the phrase "fails to state 24 a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 25 12(b)(6) and carries the same interpretation, the word "frivolous" refers to a case that is "'of little 26 weight or importance: having no basis in law or fact,'" and the word "malicious" refers to a case 27 "filed with the 'intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th 28 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 1 strikes for § 1915(g) purposes, so the mere fact that Moon has filed many cases does not alone 2 warrant dismissal under § 1915(g). See id. Rather, dismissal of an action under § 1915(g) should 3 only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other 4 relevant information, the district court determines that the action was dismissed because it was 5 frivolous, malicious or failed to state a claim." Id. 6 Andrews requires that the prisoner be given notice of the potential applicability of 7 § 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 8 ultimate burden of persuasion that § 1915(g) does not bar pauper status for him. Id. Andrews 9 implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires the court to 10 notify the prisoner of the earlier dismissals it considers to support a § 1915(g) dismissal and allow 11 the prisoner an opportunity to be heard on the matter before dismissing the action. See id. at 1120. 12 A dismissal under § 1915(g) means that a prisoner cannot proceed with his action as a pauper Northern District of California United States District Court 13 under § 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the 14 action. 15 A review of the dismissal orders in plaintiff's prior prisoner actions and appeals reveals 16 that he has had at least three such actions or appeals dismissed on the grounds that they were 17 frivolous, malicious, or failed to state a claim upon which relief may be granted. The qualifying 18 cases include: (1) Moon v. Johnson, C. D. Cal. No. 12-632-UA (MLG) (dismissed as malicious 19 and frivolous, and for failure to state a claim); (2) Moon v. Johnson, C. D. Cal. No. 12-1514-UA 20 (MLG) (dismissed as malicious and frivolous, and for failure to state a claim); (3) Moon v. 21 Johnson, C. D. Cal. No. 12-4972-UA (MLG) (dismissed as malicious and frivolous, and for 22 failure to state a claim); (4) Moon v. Baca, C. D. Cal. No. 12-5754-UA (MLG) (dismissed as 23 malicious and frivolous, and for failure to state a claim); and (5) Moon v. Baca, C. D. Cal. No. 12- 24 7697-UA (MLG) (dismissed as malicious and frivolous, and for failure to state a claim). The 25 Ninth Circuit already has agreed with the Central District of California's conclusion that Moon 26 has three qualifying dismissals. See Moon v. Baca, Ninth Cir. No. 12-56630 ("the district court 27 correctly determined that appellant has had three or more prior actions or appeals dismissed as 28 frivolous, malicious, or for failure to state a claim upon which relief may be granted"). Last year, 2 1 the Ninth Circuit took the unusual step of imposing a pre-filing review order on Moon's appeals 2 because of Moon's "practice of burdening this court with meritless litigation." See In re. Moon, 3 Ninth Cir. No. 14-80006 (docket # 3 (January 24, 2014 order to show cause) and docket # 5 4 (March 12, 2014 pre-filing review order)). 5 In light of these dismissals, and because Moon did not appear to be under imminent danger 6 of serious physical injury when he filed the complaint, he is ORDERED TO SHOW CAUSE in 7 writing filed no later than July 27, 2015, why in forma pauperis should not be denied and this 8 action should not be dismissed pursuant to 28 U.S.C. § 1915(g). In the alternative to showing 9 cause why this action should not be dismissed, Moon may avoid dismissal by paying the full 10 $400.00 filing fee by the deadline. 11 Plaintiff's "emergency" motions for leave to proceed in forma pauperis are DENIED. 12 (Docket Nos. 2, 5.) Northern District of California United States District Court 13 Plaintiff is informed that, if he wishes to complain about the conditions of confinement at 14 Chuckawalla Valley State Prison, the proper district in which to file the action is the United States 15 District Court for the Central District of California. 16 This order terminates Docket Nos. 2 and 5. 17 IT IS SO ORDERED. 18 Dated: 6/29/2015 19 ______________________________________ HAYWOOD S. GILLIAM, JR. 20 United States District Judge 21 22 23 24 25 26 27 28 3