1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DANNY FABRICANT, CASE NO. CV 21-2902 ODW (AS)

12 Plaintiff, ORDER TO PAY THE FILING FEE OR SHOW CAUSE WHY THIS ACTION 13 v. SHOULD NOT BE DISMISSED PURSUANT TO

(G) 14 COMMISSIONER OF INTERNAL

REVENUE,

15 Defendant. 16 17 On April 4, 2021, Danny Fabricant (“Plaintiff”), a federal 18 prisoner proceeding pro se, filed a Complaint seeking a declaratory 19 judgment against the Commissioner of Internal Revenue (“Defendant”) 20 on the ground that Defendant’s enforcement of

32(c)(1)(A)(ii)(II) unconstitutionally subjected Plaintiff to age 22 discrimination. (Dkt. No. 1). Plaintiff has also filed a Request 23 to Proceed Without Prepayment of Filing Fees or in forma pauperis 24 (“IFP Request”). (Dkt. No. 8). 25 26 Plaintiff’s litigation history reflects that he is subject to 27 the provisions of

(g). Courts may raise Section 28 1 1915(g) sua sponte. See, e.g., Harris v. City of New York, 607

, 23 (2nd Cir. 2010) (”district courts may apply the three 3 strikes rule sua sponte”); Maxton v. Bureau of Prisons Dir., 2019

(C.D. Cal. July 18, 2019)(“Courts may raise Section 5 1915(g) sua sponte and dismiss the action after providing the 6 plaintiff with an opportunity to be heard.”). Pursuant to 7 § 1915(g), a prisoner may not “bring a civil action or appeal a 8 judgment in a civil action or proceeding” without prepayment of 9 the filing fees: 10 11 if the prisoner has, on 3 or more prior occasions, while 12 incarcerated or detained in any facility, brought an 13 action or appeal in a court of the United States that 14 was dismissed on the grounds that it is frivolous, 15 malicious, or fails to state a claim upon which relief 16 may be granted, unless the prisoner is under imminent 17 danger of serious physical injury. 18 19

(g). Such dismissal is deemed a “strike.” 20 21 The Ninth Circuit has held that the phrase “fails to state a 22 claim on which relief may be granted” as used in §1915(g), parallels 23 the language of Fed. R. Civ. P. 12(b)(6) and carries the same 24 interpretation; that the word “frivolous” refers to a case that is 25 “of little weight or importance: having no basis in law or fact”; 26 and the word “malicious” refers to a case “filed with the ‘intention 27 or desire to harm another.’” See Andrews v. King,

, 28 1121 (9th Cir. 2005) (explaining the terms used in §1915(g)). In 1 addition, the Ninth Circuit has held that the prior denial of IFP 2 status on the basis of frivolity or failure to state a claim 3 constitutes a strike for purposes of §1915(g)). See O’Neal v. 4 Price,

(9th Cir. 2008) (also stating that a 5 dismissal without prejudice may count as a strike). Additionally, 6 appellate affirmances do not count as strikes when the appeal 7 affirms the decision of the district court, but an appeal of a 8 dismissal will count as a separate strike if the appellate court 9 “expressly states that the appeal itself was frivolous, malicious 10 or failed to state a claim.” El-Shaddai v. Zamora,

, 11 1045-46 (9th Cir. 2016). Finally, the Supreme Court recently 12 confirmed that Section 1915(g) applies “to any dismissal for 13 failure to state a claim, whether with prejudice or without.” Lomax 14 v. Ortiz-Marquez,

(2020). 15 16 Once a plaintiff has accumulated three strikes, he is 17 prohibited from pursuing any subsequent civil action without 18 prepayment of the filing fees, unless he makes a showing that he 19 was “under imminent danger of serious physical injury” based on 20 the circumstances “at the time the complaint was filed, not at some 21 earlier or later time.” Andrews v. Cervantes,

, 1052- 22 53 (9th Cir. 2007);

(g). Further, “the prisoner 23 bears the ultimate burden of persuading the court that § 1915(g) 24 does not preclude IFP status.” Richey v. Dahne,

, 25 1206 (9th Cir. 2015). 26 27 In light of the foregoing standards, the Court takes judicial 28 notice of the following prior civil actions filed by Plaintiff in 1 the United States District Courts of California, the United States 2 District Court of Arizona, the United States District Court of the 3 District of Columbia, and the Ninth Circuit Court of Appeal that 4 qualify as strikes for purposes of §1915(g). See Fed. R. Evid. 5 201(b)(2), (c)(1):1 6 7 (1) Fabricant v. Doe Mailroom Supervisor, United States 8 District Court for the Northern District of California, Case No. 9 C-93-20347-JW, 1993 U.S. Dist. Lexis 17795 (N.D. Cal. Nov. 29, 10 1993), dismissed for failure to state a claim on November 29, 1993. 11 12 (2) Fabricant v. Ninth Circuit Court of Appeals, United States 13 District Court for the Northern District of California, Case No. 14 CV 18-01965-LHK, dismissed with prejudice on June 14, 2018, for 15 failure to state a claim. (Dkt. No. 14 at 3). 16 17 (3) Plaintiff appealed Fabricant v. Ninth Circuit Court of 18 Appeals, Case No. CV 18-01965-LHK. On appeal, the Ninth Circuit 19 affirmed the district court, found that the appeal was frivolous, 20 and dismissed the appeal on February 21, 2019, “as frivolous, 21 pursuant to

(e)(2).” Fabricant v. Ninth Circuit

22 1 In addition to the cases listed below, the Court also is 23 aware of two cases Plaintiff filed in the United States District Court of the Eastern District of California in 1991 and 1993 in 24 which summary judgment was granted for defendants. (Case No. CV 91-01310-LKK-JFM; Case No. CV 93-05659-REC-HGB). Further, since 25 November 2015, Plaintiff has been subject to a vexatious litigant 26 finding and pre-filing order in his criminal case in the United States District for the Central District of California, Case No. 27 2:03-cr-01257-RSWL. (See Case No. 2:03-cr-01257-RSWL, Dkt. Nos. 1097, 1146). 28 1 Court of Appeals, 2019 U.S. App. Lexis 5105,

(9th 2 Cir., Feb. 21, 2019), reconsideration denied by 2019 U.S. App. 3 Lexis 15616 (May 24, 2019), cert. denied,

(Oct. 7, 4 2019). 5 6 (4) Fabricant v. Bissette, United States District Court for 7 the District of Arizona, Case No. CV 19-00030 TUC-JGZ,

Dist. Lexis 136514 (D. Ariz., Aug. 12, 2019), dismissed for failure 9 to state a claim on August 12, 2019. The District Court noted that 10 the dismissal may count as a “strike” under

(g). 11 The Ninth Circuit affirmed the dismissal on June 9, 2020. Fabricant 12 v. Bissette,

(9th Cir. 2020). 13 14 (5) Fabricant v. FEC, United States District Court for the 15 District of Columbia, Case No. CV 20-765 (UNA), 2020 U.S. Dist. 16 Lexis 69811,

(D. D.C. Apr. 21, 2020), dismissed 17 for failure to state a claim on April 21, 2020. The District Court 18 noted that the dismissal qualifies as a “strike” under

1915(g). 20 21 Accordingly, because plaintiff had already accumulated more 22 than three strikes before he initiated this action, plaintiff is 23 precluded from proceeding IFP herein unless he can show that, at 24 the time he initiated this action, he was “under imminent danger 25 of serious physical injury.”

(g). The availability 26 of the “imminent danger” exception “turns on the conditions a 27 prisoner faced at the time the complaint was filed, not at some 28 earlier or later time.” See Andrews,

. Here, 1 Plaintiff’s Complaint concerns the taxation of Plaintiff’s income, 2 with nothing even remotely related to dangers of physical injury. 3 The Court, however, must allow a prisoner the opportunity to be 4 heard on the matter before revoking a request to proceed IFP or 5 dismissing an action pursuant to

(g). 6 7 IT IS HEREBY ORDERED that, on or before July 15, 2021, 8 Plaintiff shall pay the full filing fees in this action, or he 9 shall show cause in writing, if there be any, why he should not be 10 denied leave to proceed IFP and the action dismissed on the ground 11 that he had suffered three or more “strikes” within the meaning of 12

(g) before initiating this action. 13 14 Plaintiff’s failure to comply with this Order will be deemed 15 by the Court as Plaintiff’s consent to the dismissal of this action. 16 17 IT IS SO ORDERED. 18 19 DATED: June 16, 2021 /s/ __________ 20 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28