Jones v. Vivas et al
Filing
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ORDER TO SHOW CAUSE. Signed by Judge Thelton E. Henderson on 08/08/2012. (Attachments: # 1 Certificate/Proof of Service)(tmi, COURT STAFF) (Filed on 8/9/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MONROE JONES,
United States District Court
For the Northern District of California
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Plaintiff,
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No. C-12-3062 TEH (PR)
ORDER TO SHOW CAUSE
v.
DOCTOR VIVAS and SAN FRANCISCO
COUNTY JAIL MEDICAL DEPARTMENT,
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Defendants.
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/
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Plaintiff, a state prisoner and frequent litigant in this
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Court, has filed a pro se civil rights complaint pursuant to 42
U.S.C. § 1983 alleging that Defendants were deliberately indifferent
to his serious medical needs because they refused to provide him
with pain medication for his chronic back and neck pain.
He also
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seeks to proceed in forma pauperis (IFP) pursuant to 28 U.S.C.
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§ 1915.
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The Prison Litigation Reform Act of 1995 (PLRA) was
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enacted, and became effective, on April 26, 1996.
It provides that
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a prisoner may not bring an IFP civil action under 28 U.S.C. § 1915
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“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
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appeal in a court of the United States that was dismissed on the
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grounds that it is frivolous, malicious, or fails to state a claim
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upon which relief may be granted, unless the prisoner is under
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imminent danger of serious physical injury.”
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28 U.S.C. § 1915(g).
For purposes of a dismissal that may be counted under
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§ 1915(g), the phrase “fails to state a claim on which relief may be
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granted” parallels the language of Federal Rule of Civil Procedure
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12(b)(6) and carries the same interpretation, the word “frivolous”
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refers to a case that is “of little weight or importance: having no
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basis in law or fact,” and the word “malicious” refers to a case
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“filed with the ‘intention or desire to harm another.’”
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King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted).
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cases within one of these three categories can be counted as strikes
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for § 1915(g) purposes.
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§ 1915(g) should only occur when, “after careful evaluation of the
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order dismissing an [earlier] action, and other relevant
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information, the district court determines that the action was
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dismissed because it was frivolous, malicious or failed to state a
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claim.”
Id.
Andrews v.
Only
Dismissal of an action under
Id.
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Andrews requires that the prisoner be given notice of the
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potential applicability of § 1915(g), by either the district court
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or the defendants, but also requires the prisoner to bear the
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ultimate burden of persuasion that § 1915(g) does not bar pauper
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status for him.
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the § 1915(g) problem sua sponte, but requires the Court to notify
Id.
Andrews implicitly allows the Court to raise
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the prisoner of the earlier dismissals it considers to support a
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§ 1915(g) dismissal and allow the prisoner an opportunity to be
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heard on the matter before dismissing the action.
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dismissal under § 1915(g) means that a prisoner cannot proceed with
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his action as a pauper under § 1915(g), but he still may pursue his
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claims if he pays the full filing fee at the outset of the action.
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Id. at 1120.
A
A review of dismissal orders in Plaintiff’s prior prisoner
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actions reveals that Plaintiff has had at least three cases
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dismissed on the ground that they were frivolous, malicious, or
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failed to state a claim upon which relief may be granted.
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on the defendants’ motion to dismiss in Jones v. Spaeth, C 07-0677
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BLW (E.D. Cal. March 31, 2010), the court addressed the same claim
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Plaintiff asserts here, that medical staff refused to provide him
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with prescribed pain medication.
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defendants had met their burden of producing documentary evidence
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that allowed the district court to conclude that the plaintiff has
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filed at least three prior actions that were dismissed because they
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were “frivolous, malicious or fail[ed] to state a claim.”
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C 07-0677 BLW at 4.
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upon Jones v. Wood, C 99-2277 BTM (LSP) (S.D. Cal. December 14,
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1999), where the Honorable Barry Moskowitz had determined that
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Plaintiff Monroe Jones could not proceed IFP because he had
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previously accumulated eleven dismissals that counted as strikes
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under 28 U.S.C. § 1915(g).
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counted as a strike Jones v. Law Librarian Folsom State Prison, 999
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F.2d 543 (9th Cir. 1993) (unpublished decision) where the Ninth
The Spaeth court held that the
Spaeth,
The Spaeth court based its opinion, in part,
Spaeth at 4.
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In ruling
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The Spaeth court also
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Circuit affirmed the district court’s dismissal with prejudice for
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failure to state a claim Plaintiff’s complaint alleging he had a
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right to a pen under case law governing access to the courts.
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Spaeth, C 07-0677 BLW at 5.
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Plaintiff is now given notice that the Court believes the
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following dismissals may be counted as dismissals for purposes of
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§ 1915(g): Spaeth, No. C 12-0677 BLW; (dismissing deliberate
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indifference complaint under 28 U.S.C. § 1915(g)); Law Librarian
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Folsom State Prison, 999 F.2d 543 (affirming district court’s
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dismissal for failure to state a claim upon which relief could be
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granted); Jones v. Chief Deputy Pat Cassidy, et al., C 09-2625 RMW
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(N.D. Cal. July 14, 2009)(dismissing parole revocation complaint for
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failure to state a claim upon which relief could be granted); and
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Jones v. Briggs, C 05-1277 LJO (E.D. Cal. Nov. 12, 2008) (listing
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eight cases filed by Plaintiff that had been dismissed on grounds
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that counted as strikes under § 1915(g) and dismissing complaint
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under § 1915(g)).
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Therefore, Plaintiff may proceed IFP only if he is seeking
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relief from a danger of serious physical injury which is “imminent”
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at the time of filing.
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(9th Cir. 2007).
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312 (3d Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189,
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1192-93 (11th Cir. 1999).
Andrews v. Cervantes, 493 F.3d 1047, 1053
See also Abdul-Akbar v. McKelvie, 239 F.3d 307,
He does not appear to be in such danger.
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In light of these dismissals, and because Plaintiff does
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not appear to be under imminent danger of serious physical injury,
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he is ORDERED TO SHOW CAUSE in writing no later than thirty (30)
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days from the date of this Order why IFP status should not be denied
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and this action should not be dismissed pursuant to 28 U.S.C.
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§ 1915(g).
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paying the $350.00 filing fee.
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continue to review under § 1915(g) all future actions filed by
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Plaintiff while he is incarcerated in which he seeks IFP status.
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If Plaintiff is so inclined, he may avoid dismissal by
In any event, the Court will
Failure to file a timely response or failure to pay the
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full filing fee will result in the dismissal of this action without
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further notice to Plaintiff.
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IT IS SO ORDERED.
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DATED
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08/08/2012
THELTON E. HENDERSON
United States District Judge
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