1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JAMES LAVELL HARRIS, Case No. 19-cv-02982-EMC

8 Plaintiff, ORDER TO SHOW CAUSE RE 9 v. CONTEMPLATED DISMISSAL

10 STATE OF CALIFORNIA, et al., Docket No. 1 11 Defendants.

12 13 14 James Lavell Harris, a/k/a Smiley James Harris, is incarcerated at the Lake County Jail in 15 Lakeport, California. He has filed this pro se civil action and has applied to proceed in forma 16 pauperis pursuant to

. 17 A prisoner may not bring a civil action in forma pauperis under

“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.”

(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,

(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. Harris is now given notice that the Court believes the following dismissals may be 18 counted as dismissals for purposes of § 1915(g): (1) Harris v. Lake County Jail, N.D. Cal. Case 19 No. C 09-3758 SI (dismissed for failure to state a claim); (2) Harris v. Lake County Jail, N.D. Cal. 20 Case No. C 09-5214 (dismissed for failure to state a claim); and (3) Harris v. Lake County 21 Sheriff’s Department, N.D. Cal. Case No. C 14-3305 PSG (dismissed for failure to state a claim). 22 The Court made its evaluation of these cases based on the dismissal orders and docket sheets in 23 them. See Andrews, 398 F.3d at 1120 (sometimes the docket records may be sufficient, and 24 sometime the actual court files may need to be consulted). 25 /// 26 /// 27 /// 1 In light of these dismissals, and because Mr. Harris does not appear to be under imminent 2 danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later 3 than October 25, 2019, why in forma pauperis status should not be denied and this action should 4 not be dismissed pursuant to

(g). In the alternative to showing cause why the 5 action should not be dismissed, Mr. Harris may avoid dismissal by paying the full $400.00 filing 6 fee by the deadline. 7 8 IT IS SO ORDERED. 9 10 Dated: September 20, 2019 11 LL =a ED M.C 13 United States District Judge

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