1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 ADONAI EL-SHADDAI, 7 AKA JAMES RAY WILKERSON, Case No. 20-cv-02042-YGR (PR) 8 Plaintiff, ORDER TO SHOW CAUSE 9 v. 10 WILLIAM MUNIZ, et al., 11 Defendants. 12 Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under 13

, seeking damages for alleged civil rights violations. Plaintiff has also filed a 14 motion for leave to proceed in forma pauperis (“IFP”). Dkt. 2. For the reasons stated below, the 15 Court orders Plaintiff to show cause why his motion for leave to proceed IFP should not be 16 denied, and this action should not be dismissed pursuant to

(g). 17 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective, 18 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C. 19 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 20 facility, brought an action or appeal in a court of the United States that was dismissed on the 21 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 22 unless the prisoner is under imminent danger of serious physical injury.”

(g). 23 For purposes of a dismissal that may be counted under section 1915(g), the phrase “fails to 24 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil 25 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 26 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to 27 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King,

, 1 counted as strikes for section 1915(g) purposes. See

Dismissal of an action under section 2 1915(g) should only occur when, “after careful evaluation of the order dismissing an [earlier] 3 action, and other relevant information, the district court determines that the action was dismissed 4 because it was frivolous, malicious or failed to state a claim.”

5 Andrewsrequires that the prisoner be given notice of the potential applicability of section 6 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 7 ultimate burden of persuasion to show that section 1915(g) does not bar pauper status in this case. 8

Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but 9 requires the court to notify the prisoner of the earlier dismissals it considers to support a section 10 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before 11 dismissing the action. See

. A dismissal under section 1915(g) means that a prisoner 12 cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his 13 claims if he pays the full filing fee at the outset of the action. 14 A review of the dismissal orders in Plaintiff’s prior prisoner actions reveals that he has had 15 at least three such cases dismissed on the ground that they were frivolous, malicious, or failed to 16 state a claim upon which relief may be granted. Plaintiff is now given notice that the Court 17 believes the following dismissals may be counted as dismissals for purposes of section 1915(g): 18 (1) El-Shaddai v. Stainer, No. 2:14-cv-09313 GHK (JC) (C.D. Cal. Dec. 13, 2016) (dismissing 19 second amended complaint for failure to state a claim); (2) Wilkerson v. Terhune, No. S-99-1539 20 LKK DAD P (E.D. Cal. Oct. 11, 2000) (dismissing amended complaint for failure to state a claim 21 upon plaintiff’s failure to file a timely second amended complaint to cure deficiencies); and 22 (3) Wilkerson v. Popke, No. C 94-0035 FMS (N.D. Cal. Mar. 18, 1994) (denying IFP status 23 because civil rights complaint failed to state a claim upon which relief may be granted). The 24 Court has evaluated each of these cases based on their dismissal orders. See Andrews,

1120. 26 In light of these dismissals, and because Plaintiff does not appear to be under imminent 27 danger of serious physical injury, see Andrews v. Cervantes,

(9th Cir. 2007), 1 the date of this Order why his motion for leave to proceed IFP should not be denied and this action 2 || should not be dismissed pursuant to

(g). If Plaintiff is so inclined, he may avoid 3 dismissal by paying the $400.00 filing fee. In any event, the Court will continue to review under 4 |} section 1915(g) all future actions filed by Plaintiff while he is incarcerated and in which he seeks 5 || IFP status. 6 Failure to file a timely response or failure to pay the full filing fee in will result in the 7 || dismissal of this action without further notice to Plaintiff. 8 IT IS SO ORDERED. 9 Dated: June 3, 2020 10 JJ fol te. □□ YYONNE GONZAKEZ ROGERS © 11 Unrted States District Judge

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