Arendas v. Altizer ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PETER JOHN ARENDAS, #36554, Case No. 20-cv-02702-CRB (PR) 8 Plaintiff, ORDER OF DISMISSAL 9 v. 10 KEITH ALTIZER, 11 Defendant(s). 12 On April 24, 2020, the court denied plaintiff’s application to proceed in forma pauperis 13 (IFP) in connection with this pro se prisoner action for damages for various alleged wrongdoing 14 by Arcata Police Department supervising officer Keith Altizer because plaintiff: (1) has had three 15 or more prior prisoner actions dismissed by a federal court on the grounds that they are frivolous, 16 malicious or fail to state a claim upon which relief may be granted, and (2) is not seeking relief 17 from a danger of serious physical injury which was imminent at the time of filing. Apr. 24, 2020 18 Order (ECF No. 3) at 1-2 (applying 28 U.S.C. § 1915(g)). But under the law of the circuit, the 19 court afforded plaintiff 28 days to show cause why § 1915(g) does not bar IFP status for him or 20 pay the requisite $ 400.00 filing fee. The court made clear that failure to show cause or pay the 21 requisite $ 400.00 filing fee within the designated time would result in the dismissal of this action 22 without prejudice to bringing it in a new paid complaint. Id. at 2. 23 Plaintiff did not file a response in this case, but in a complimentary case against Altizer 24 which plaintiff voluntarily dismissed, plaintiff filed a response arguing, as he has in his many 25 cases in this court, that the prior prisoner case dismissals of his cited by the court should not count 26 as strikes under § 1915(g) because they occurred back in 2010 when he was “unlearned” in the 27 law. Arendas v. Altizer, No. 20-cv-02041-CRB, ECF No. 7 at 2. Plaintiff adds that the “3 strikes 1 only for “failing to state a claim.” Id. Plaintiff's argument is without merit. The unambiguous 2 || language of section 1915(g) makes clear that prior prisoner actions dismissed for “fail[ure] to state 3 a claim upon which relief may be granted” count as a strike. 28 U.S.C. § 1915(g); see Andrews v. 4 || King, 398 F.3d 1113, 1121 (9th Cir. 2005). And plaintiffs pro se status and/or limited legal skills 5 when he suffered these dismissals in 2010 does not affect whether the dismissals count as a strike 6 under § 1915(g). See Arendas v. Vega, No. 2:19-cv-01332-TLN-EFB, 2019 U.S. Dist. LEXIS 7 219383, at *3 (E.D. Cal. Dec. 20, 2019) (rejecting plaintiff’s same argument as here and 8 || explaining that pro se status does not affect analysis to determine whether prior dismissal 9 constitutes a strike under § 1915(g)). 10 Because plaintiff has three or more strikes and does not qualify for the imminent danger 11 exception, § 1915(g) bars him from proceeding IFP in this action. This action therefore is 12 || DISMISSED without prejudice to bringing it in a new paid complaint. 13 The clerk is instructed to close the file and terminate all pending motions as moot. 14 IT IS SO ORDERED. 2 15 || Dated: June 15, 2020 tc a CHARLES R. BREYER 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28