Akers v. Siereveld ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MONTGOMERY CARL AKERS, Case No. 17-cv-03340-EMC 8 Plaintiff, ORDER TO SHOW CAUSE RE 9 v. CONTEMPLATED DISMISSAL 10 KATHERINE N SIEREVELD, Docket No. 2 11 Defendant. 12 13 14 Montgomery Carl Akers is a prisoner at the United States Penitentiary in Marion, Illinois. 15 He has filed this pro se civil action and has applied to proceed in forma pauperis pursuant to 28 16 U.S.C. § 1915. 17 A prisoner may not bring a civil action in forma pauperis under 28 U.S.C. § 1915 “if the 18 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 19 an action or appeal in a court of the United States that was dismissed on the grounds that it is 20 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 21 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). Section 1915(g) 22 requires that the court consider prisoner actions dismissed before, as well as after, the statute's 23 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997). 24 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state 25 a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure 26 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little 27 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case 1 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as 2 strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not 3 alone warrant dismissal of the present action under § 1915(g). See Andrews, 398 F.3d at 1121. 4 Rather, dismissal of an action under § 1915(g) should only occur when, “after careful evaluation 5 of the order dismissing an [earlier] action, and other relevant information, the district court 6 determines that the action was dismissed because it was frivolous, malicious or failed to state a 7 claim.” Andrews, 398 F.3d at 1121. 8 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g), 9 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 10 burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at 11 1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires 12 the court to notify the prisoner of the earlier dismissals it considers to support a § 1915(g) 13 dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the 14 action. Andrews, 398 F.3d at 1120. A dismissal under § 1915(g) means that a prisoner cannot 15 proceed with his action as a pauper under § 1915, but he still may pursue his claims if he pays the 16 full filing fee at the outset of the action. 17 Mr. Akers is now given notice that the Court believes the following dismissals may be 18 counted as dismissals for purposes of § 1915(g): (1) Akers v. Poisson, D. Maine Case No. 09- 19 0054-P-S (D. Me. Mar. 24, 2009) (dismissed for failure to state a claim); (2) Akers v. Rokusek, 20 S.D. Cal. Case No. 09-0472 DMS (JMA) (S.D. Cal. Apr. 28, 2009) (dismissed as frivolous); (3) 21 Akers v. Martin, D. Kan. Case No. 06-cv-03175 SAC (D. Kan. July 12, 2006) (dismissed for 22 failure to state a claim); (4) Akers v. Crow, D. Kan. Case No. 09-cv-03037-RDR (D. Kan. Mar. 2, 23 2009 (dismissed for failure to state a claim and as frivolous); (5) Akers v. Keszei, D. N.H. Case 24 No. 08-cv-334 JL (D. N.H. Apr. 16, 2009 (dismissed for failure to state a claim); (6) Akers v. 25 Watts, D. D.C. Case No. 08-140 EGS (D. D.C. Sept. 24, 2010) (dismissed for failure to state a 26 claim); and (7) Akers v. Davis, 400 F. App’x 332 (10th Cir. Oct. 28, 2010) (dismissing appeal as 27 frivolous and noting the dismissal counts as a “strike” dismissal under §1915(g)). The Court made 1 Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient, and sometime the 2 actual court files may need to be consulted). 3 In light of these dismissals, and because Mr. Akers does not appear to be under imminent 4 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 5 than November 27, 2020, why in forma pauperis status should not be denied and this action 6 should not be dismissed pursuant to 28 U.S.C. § 1915(g). In determining whether to deny in 7 forma pauperis status, the Court will consider the arguments in Mr. Akers’ motion for initial 8 hearing as well as any additional arguments he presents in his written response to the order to 9 show cause. In the alternative to showing cause why the action should not be dismissed, Mr. 10 Akers may avoid dismissal by paying the full $400.00 filing fee by the deadline. 11 12 IT IS SO ORDERED. 13 14 Dated: October 19, 2020 15 16 ______________________________________ EDWARD M. CHEN 17 United States District Judge 18 19 20 21 22 23 24 25 26 27