(PC)Wright v. Rodriguez ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEITH JEROME WRIGHT, No. 1:23-cv-01586 GSA (PC) 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY HIS IN FORMA PAUPERIS 13 v. STATUS SHOULD NOT BE REVOKED IN LIGHT OF 28 U.S.C. 1915(g) 14 RODRIGUEZ, et al., (See ECF No. 7) 15 Defendants. PLAINTIFF’S SHOWING OF CAUSE DUE 16 SEPTEMBER 24, 2024 17 18 KEITH JEROME WRIGHT, No. 1:24-cv-01029 GSA (PC) 19 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY HIS APPLICATION TO 20 v. PROCEED IN FORMA PAUPERIS STATUS SHOULD NOT BE DENIED IN LIGHT OF 28 21 ZALDIVAR-GALVES, U.S.C. 1915(g) 22 Defendant. (See ECF No. 2) 23 PLAINTIFF’S SHOWING OF CAUSE DUE SEPTEMBER 24, 2024 24 25 Plaintiff, a state prisoner proceeding pro se, has filed civil rights actions in the above- 26 referenced matters seeking relief under 42 U.S.C. § 1983. The cases were referred to a United 27 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 28 1 For the reasons stated below, Plaintiff will be ordered to show cause why: (1) his in 2 forma pauperis status in Wright v. Rodriguez, No. 1:23-cv-01586 GSA (“Wright I”) (see Wright 3 I, ECF No. 7) should not be revoked, and (2) his application to proceed in forma pauperis in 4 Wright v. Zaldivar-Galves, No. 1:24-cv-01029 GSA (“Wright II”) (see Wright II, ECF No. 2) 5 should not be denied in light of 28 U.S.C. § 1915(g). 6 I. RELEVANT FACTS 7 On November 9, 2023, Plaintiff’s complaint in Wright I and his application to proceed in 8 forma pauperis were docketed. Wright I, ECF Nos. 1, 2. Shortly thereafter, Plaintiff’s 9 application to proceed in forma pauperis was granted. Wright I, ECF No. 7. 10 On August 29, 2024, Plaintiff’s complaint in Wright II was docketed along with an 11 application to proceed in forma pauperis. Wright II, ECF Nos. 1, 2. Plaintiff’s in forma pauperis 12 application is still pending before this Court. 13 II. APPLICABLE LAW 14 28 U.S.C. § 1915(g) states: 15 In no event shall a prisoner bring a civil action or appeal a judgment in a civil 16 action or proceeding under this section if the prisoner has, on 3 or more prior 17 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it 18 is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 19 20 28 U.S.C. § 1915(g). 21 III. DISCUSSION 22 A. Plaintiff Appears to be a Three Strikes Litigant Within the Meaning of Section 23 1915(g) 24 The Court takes judicial notice1 of the following cases of Plaintiff’s that were fully 25 26 1 A court may take judicial notice of its own records. See United States v. Howard, 381 F.3d 27 873, 876 n.1 (9th Cir. 2004); see United States v. Author Servs., Inc., 804 F.2d 1520, 1523 (9th Cir. 1986) overruled on other grounds, United States v. Jose, 131 F.3d 1325, 1328-29 (9th Cir. 28 1997). 1 2 adjudicated at the time he filed Wright I and Wright II. These matters appear to constitute strikes 3 within the meaning of Section 1915(g): 4 • Wright v. Sacramento Police Department, No. 2:13-cv-02125 EFB (E.D. Cal. Aug 8, 5 2014) (dismissed for failure to amend after determination that matter failed to state a 6 claim);2 7 • Wright v. Bank of America, 2:16-cv-01858 MCE CKD (E.D. Cal. Jan 31, 2017) 8 (dismissal for failure to amend after determination that matter failed to state a claim), 9 and 10 • Wright v. Sherman, No. 1:21-cv-01111 DAD SAB (E.D. Cal. Feb. 22, 2022) 11 (voluntary dismissal after determination that complaint failed to state a claim);3 12 B. Plaintiff Was Not in Imminent Danger When He Filed Wright I and Wright II 13 In addition, a review of Wright I and Wright II indicates that Plaintiff did not make 14 plausible claims in those complaints that he was in imminent danger of serious physical harm at 15 the time he filed each of these matters. See Wright I, ECF No. 1 (complaint); Wright II, ECF No. 16 1 (complaint). For these reasons, Plaintiff is precluded from proceeding in forma pauperis in 17 either action and must pay the filing fees for these cases in full before he may proceed any further 18 in them. However, prior to being ordered to do so, he will be allowed to show cause: (1) why his 19 in forma pauperis status in Wright I should not be revoked, and (2) why his application to proceed 20 in forma pauperis in Wright II should not be denied. He will be given twenty-one days to file the 21 2 The dismissal of a complaint after (1) a court has determined that it fails to state a claim, and (2) a plaintiff is granted leave to amend, yet he fails to do so, constitutes a strike under Section 22 1915(g). See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). 23 3 A voluntary dismissal after it has been determined that a complaint fails to state a claim still constitutes a strike within the meaning of 28 U.S.C. § 1915(g). See Harris v. Mangum, 863 F.3d 24 1133 (9th Cir. 2017) (style of dismissal immaterial when determining if dismissal counts as strike; question is whether dismissal “rang the [Prison Litigation Reform Act] bells of frivolous, 25 malicious, or failure to state a claim’); Sumner v. Tucker, 9 F. Supp. 2d 641, 643-44 (E.D. Va. 1998) (voluntary dismissal does not relieve plaintiff of consequences of filing frivolous action 26 under Section 1915(g)); Heilman v. Deillen, No. 14-cv-6298 JVS FFM, 2017 WL 10591881, at 27 *4-5 (C.D. Cal. Sept. 18, 2017) (“[I]t would frustrate the purposes of § 1915(g) if plaintiff avoided a strike merely because he, rather than the court, instigated the dismissal of an action that 28 he acknowledged was non-viable.”). 1 showings of cause. 2 Accordingly, consistent with 28 U.S.C. § 1915(g), IT IS HEREBY ORDERED that: 3 1. Plaintiff is ordered to SHOW CAUSE in Wright v. Rodriguez, No. 1:23-cv-01586 4 GSA why his in forma pauperis status should not be REVOKED. See Wright I, ECF No. 7. 5 2. Plaintiff is ordered to SHOW CAUSE in Wright v. Zaldivar-Galvez, No. 1:24-cv- 6 01029 GSA why his application to proceed in forma pauperis should not be DENIED. See 7 Wright II, ECF No. 2, and 8 3. Plaintiff’s showings of cause in both cases shall be filed simultaneously, and they may 9 be identical in content, and 10 4. Both showings of cause shall be filed within twenty-one days from the date of this 11 order – i.e., by September 24, 2024. 12 Plaintiff is cautioned that failure to comply with this order within the time allotted 13 may result in a recommendation that this matter be dismissed. 14 15 IT IS SO ORDERED. 16 17 Dated: September 2, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28