Barry Jameson v. John Marshall
Filing
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ORDER TO SHOW CAUSE by Magistrate Judge Victor B. Kenton, Because it appears that Plaintiff has on three or more prior occasions brought civil actions that have been dismissed as frivolous or for failure to state a claim, the Court HEREBY ORDERS: (1) Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date of service of this Order why the above-mentioned actions do not count as strikes under 28 U.S.C. § 1915(g) and why the action should not be dismissed without prejudice to allow Plaintiff to refile with the submission of the $350 filing fee. Response to Order to Show Cause due by 6/1/2012. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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BARRY JAMESON,
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Plaintiff,
v.
JOHN MARSHALL,
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Defendant.
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No. CV 10-08790-CAS (VBK)
ORDER TO SHOW CAUSE REGARDING
THREE STRIKES
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I
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PROCEDURAL HISTORY
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On February 11, 2011, Plaintiff Barry Jameson, a state prisoner
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proceeding pro se and in forma pauperis (“IFP”), filed a civil rights
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action pursuant to 42 U.S.C. § 1983.
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On July 18, 2011, the Court issued an Order Dismissing Complaint
with Leave to Amend.
On August 23, 2011, Plaintiff filed a First Amended Complaint.
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A.
Three Strikes.
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A review of the record of actions filed by Plaintiff in the
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United States District Court reveals that Plaintiff has filed three
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actions that were dismissed as frivolous, malicious or for failing to
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state a claim upon which relief may be granted.
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“[I]n no event shall a prisoner bring a civil action ... under
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this section if the prisoner has, on 3 or more prior occasions, while
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incarcerated or detained in any facility, brought an action or appeal
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in a Court of the United States that was dismissed on the grounds that
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it is frivolous, malicious or fails to state a claim upon which relief
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may be granted, unless the prisoner is under imminent danger of
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serious physical injury.”
28 U.S.C. § 1915(g).1
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Determining whether Plaintiff’s actions count as strikes under §
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1915(g) requires the Court to conduct a “careful examination of the
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order dismissing an action, and other relevant information,” to
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determine if, in fact, “the action was dismissed because it was
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frivolous, malicious or failed to state a claim.”
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at 1121.
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applications to file an action without prepayment of the full filing
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fee on the ground that the complaint is frivolous, malicious or fails
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to state a claim.
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2008).
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cannot proceed in forma pauperis.
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n.1; see also Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir.
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2007)(Under
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unsuccessful suits may entirely be barred from IFP status under the
Andrews, 398 F.3d
Strikes include dismissals styled as denials of prisoner
O’Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir.
Pursuant to § 1915(g), a prisoner with three strikes or more
the
PLRA,
Andrews v. King, 398 F.3d at 1116
“[p]risoners
who
have
repeatedly
brought
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Section 1915(g) was enacted as part of the 1996 amendments to the
Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321, §
804(d)(the “PLRA”). Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir.
2005). “This subdivision is commonly known as the ‘three strikes’
Provision. ‘Strikes’ are prior cases or appeals, brought while the
plaintiff was a prisoner, which were dismissed on the ground that they
were frivolous, malicious, or failed to state a claim.” Id.
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three strikes rule[.]”).
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The Court takes judicial notice of the following cases which
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appear to count as strikes: (1) Jameson v. CDCR 3:96-CV-00889-IEG-RBB
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(S.D. Cal.), dismissed January 27, 1997 for failure to state a claim,
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pursuant to Heck v. Humphrey, 512 U.S. 477 (1994);2 (2) Jameson v.
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CDCR, 3:96-CCR-01175-H-LSP (S.D. Cal.)(dismissed January 24, 1997 for
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failure to state a claim, pursuant to Heck); and (3) Jameson v. CDCR,
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3:96-CV-01797-K-RBB
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failure to state a claim, pursuant to Heck).
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It
appears
to
(S.D.
the
Cal.)(dismissed
Court
that
January
Plaintiff
has
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1997,
three
or
for
more
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“strikes” well before Plaintiff filed this action on February 11, 2011
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and is subject to § 1915(g). Therefore, Plaintiff may be precluded
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from proceeding in forma pauperis unless he was, at the time this
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Complaint was filed, under imminent danger of serious physical injury.
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CONCLUSION
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Because it appears that Plaintiff has on three or more prior
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occasions brought civil actions that have been dismissed as frivolous
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or for failure to state a claim, the Court HEREBY ORDERS:
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(1) Plaintiff SHALL SHOW CAUSE within thirty (30) days of the
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date of service of this Order why the above-mentioned actions do not
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count as “strikes” under 28 U.S.C. § 1915(g) and why the action should
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not be dismissed without prejudice to allow Plaintiff to refile with
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2
Dismissals pursuant to Heck count as § 1915(g) strikes as
Plaintiff would fail to state a claim. See Romero v. United States,
et al., 2011 U.S. Dist. Lexis 39224 (D. Az. April 5, 2011). (Finding
cases dismissed pursuant to Heck are dismissals for failure to state
a claim.)
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the submission of the $350 filing fee.
IT IS SO ORDERED.
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DATED: May 2, 2012
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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