McCullom v. Ahern ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 KEVIN MCCULLOM, 11 Case No. 20-00220 BLF (PR) Plaintiff, 12 ORDER TO SHOW CAUSE WHY v. PLAINTIFF’S IN FORMA 13 PAUPERIS APPLICATION SHOULD NOT BE DENIED 14 AHERN, et al., PURSUANT TO § 1915(G) 15 Defendants. 16 17 18 Plaintiff, a California state prisoner, filed the instant pro se civil rights action 19 pursuant to 42 U.S.C. § 1983 against various officers and employees of the Santa Rita Jail, 20 Alameda County Sheriff’s Department, and San Mateo County. Dkt. No. 5 at 2-5. 21 Plaintiff moves for leave to proceed in forma pauperis (“IFP”). Dkt. No. 4. 22 For the reasons discussed below, the Court has reason to believe that Plaintiff’s 23 motion for leave to proceed IFP should be denied under 28 U.S.C. § 1915(g) because he 24 has three or more prior lawsuits that were dismissed for failure to state a cognizable claim 25 or as frivolous or malicious. Plaintiff shall be granted an opportunity to show cause why 26 he should be granted leave to proceed IFP. 27 /// 1 DISCUSSION 2 I. 28 U.S.C. § 1915(g) 3 A. Standard of Review 4 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became 5 effective, on April 26, 1996. It provides that a prisoner may not bring a civil action or 6 appeal a judgment in a civil action or proceeding under 28 U.S.C. § 1915 (i.e., may not 7 proceed in forma pauperis) “if the prisoner has, on three or more prior occasions, while 8 incarcerated or detained in any facility, brought an action or appeal in a court of the United 9 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a 10 claim upon which relief may be granted, unless the prisoner is under imminent danger of 11 serious physical injury.” 28 U.S.C. § 1915(g). 12 For purposes of a dismissal that may be counted under § 1915(g), Andrews I gave 13 this guidance: The phrase “fails to state a claim on which relief may be granted” parallels 14 the language of Federal Rule of Civil Procedure 12(b)(6) and apparently means the same 15 thing. Andrews I, 398 F.3d at 1121. A case “is frivolous if it is ‘of little weight or 16 importance: having no basis in law or fact.’” Id. (citation omitted). “A case is malicious if 17 it was filed with the ‘intention or desire to harm another.’” Id. (citation omitted). “Not all 18 unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to 19 deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an 20 action, and other relevant information, the district court determines that the action was 21 dismissed because it was frivolous, malicious or failed to state a claim.” Id. at 1121. 22 Duplicative or repetitious litigation of virtually identical causes of action is subject 23 to dismissal under 28 U.S.C. § 1915 as malicious. Bailey v. Johnson, 846 F.2d 1019, 1021 24 (5th Cir. 1988). An in forma pauperis complaint that merely repeats pending or previously 25 litigated claims may be considered abusive and dismissed under § 1915. Cato v. United 26 States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). A dismissal under Heck v. Humphrey, 512 1 Heck’s bar to relief is obvious from the face of the complaint, and the entirety of the 2 complaint is dismissed for a qualifying reason under § 1915(g). Washington v. Los 3 Angeles Cnty. Sheriff’s Dep’t., 833 F.3d 1048, 1055 (9th Cir. 2016). 4 The Court finds that each of the following cases counts as a strike under § 1915(g): 5 (1) McCullom v. Alameda County Sheriff’s Dept., No. 16-cv-3299 TEH (N.D. Cal. 2016) 6 (dismissed as frivolous and malicious); (2) McCullom v. Cambra, No. 01-cv-01405-DMS 7 (S.D. Cal. 2003)(dismissed for failure to state a claim); (3) McCullom v. Parker, No. 16- 8 cv-1054 TEH (N.D. Cal. 2016) (dismissed as duplicative and therefore may be considered 9 a dismissal as malicious); and (4) McCullom v. Ahern, No. 16-cv-00044 HRL (N.D. Cal. 10 2016) (dismissed entirely as barred by Heck). Based on these cases, Plaintiff has at least 11 three cases that count as strikes under § 1915(g). Unless he was under imminent danger of 12 serious physical injury at the time he filed this action, the IFP motion must be denied. 13 B. Plaintiff’s Claims 14 Plaintiff labels his complaint as a “class action” and lists several other inmates as 15 plaintiffs. Dkt. No. 5 at 1-3. To the extent that Plaintiff is seeking class certification, it is 16 DENIED. Pro se prisoner plaintiffs are not adequate class representatives able to fairly 17 represent and adequately protect the interests of the class, see Oxendine v. Williams, 509 18 F.2d 1405, 1407 (4th Cir. 1975); see also Russell v. United States, 308 F.2d 78, 79 (9th 19 Cir. 1962), so class certification may be denied on that basis, see Griffin v. Smith, 493 F. 20 Supp. 129, 131 (W.D.N.Y. 1980) (denying class certification on basis that pro se prisoner 21 cannot adequately represent class). Accordingly, the other named plaintiffs are 22 DISMISSED from this action without prejudice to file separate, individual lawsuits. 23 It appears from the complaint, that Plaintiff is challenging underlying criminal 24 proceedings out of Alameda County, as he seeks the following relief: “that there be an 25 evidentiary hearing of the evidence within my previous criminal court cases conviction on 26 October 4, 2017, [where] I was falsely arrested [and] extorted to plea[d] guilty to 1 proven.” Dkt. No. 5 at 6. Plaintiff also seeks disciplinary action against the superior court 2 judges involved in that conviction, id. at 7, that the attorneys involved be disbarred or 3 suspended, id. at 8, and damages for pain and suffering and emotional distress, id. at 8-9. 4 He also wants this Court to “remand back to the Oakland Superior Court my writ of habeas 5 corpus petition vacating the March 18, 2019, illegal ruling that the exclusionary rule does 6 not apply in my preliminary hearing and further granting… motion to suppress the 7 evidence in superior court.” Id. at 10. There are no allegations indicating that Plaintiff 8 was in “imminent danger” at the time he filed this action on January 10, 2020. Dkt. No. 1. 9 Accordingly, Plaintiff is not entitled to the exception under § 1915(g). 10 The Ninth Circuit in Andrews I, 398 F.3d at 1120, implicitly allowed the district 11 court to raise the § 1915(g) problem sua sponte but required the district court to notify the 12 plaintiff of the earlier dismissals it considers to support a § 1915(g) dismissal and allow the 13 plaintiff an opportunity to be heard on the matter before dismissing the action. See id. at 14 1120. The prisoner must be given notice of the potential disqualification under § 1915(g) 15 and plaintiff bears the ultimate burden of persuasion that § 1915(g) does not bar pauper 16 status for him. Id. Accordingly, Plaintiff shall be granted an opportunity to show cause 17 why his IFP application should not be denied under § 1915(g) by showing why any of the 18 prior dismissals discussed above should not count as a strike. Id. 19 20 CONCLUSION 21 For the reasons stated above, the Court orders Plaintiff to file a response no later 22 than twenty-eight (28) days from the filing of this order, showing cause why his IFP 23 application should not be denied pursuant to § 1915(g). 24 If Plaintiff fails to file a response in the time provided, his IFP application shall be 25 denied and the full filing fee will be immediately due. If the fee is not paid in due time, 26 this case will be dismissed without prejudice for failure to pay the filing fee without further 1 IT ISSO ORDERED. 2 || Dated: April 29, 2020 het Lb hammer) 3 BETH LABSON FREEMAN United States District Judge 4 5 6 7 8 9 10 1] 12 15 16 «17 18 19 20 21 22 23 24 25 Order to Show Cause Re IFP PRO-SE\BLF\CR.20\00220McCullim_osc.1915g 26 27