1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISION 7 8 DAVID ROBERTS, Case No. 20-cv-06113-RMI

9 Plaintiff, ORDER FOR PLAINTIFF TO SHOW 10 v. CAUSE

11 MONTEREY COUNTY JAIL, et al., 12 Defendants.

13 14 Plaintiff, a former detainee at the Monterey County Jail, and currently a state prisoner, has 15 filed a pro se civil rights complaint under

. Plaintiff has also filed an application 16 to proceed in forma pauperis pursuant to

17 The Prison Litigation Reform Act of 1995 (“PLRA”), provides that a prisoner may not 18 bring a civil action or appeal a civil judgment under

“if the prisoner has, on three 19 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal 20 in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 21 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 22 danger of serious physical injury.”

(g). The phrase “fails to state a claim on 23 which relief may be granted,” as used in § 1915(g), “parallels the language of Federal Rule of 24 Civil Procedure 12(b)(6).” Andrews v. King,

(9th Cir. 2005) (internal 25 quotation marks omitted). A case is “frivolous” within the meaning of § 1915(g) if “it is of little 26

27 1 Plaintiff submitted several filings in other cases that included this docket number, but were not 1 weight or importance: having no basis in law or fact.” Id. (internal quotation marks omitted). 2 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g), 3 by either the district court or the defendants, but also requires the prisoner to bear the ultimate 4 burden of persuasion to convince the court that § 1915(g) does not bar in forma pauperis status for 5 him. Andrews,

. Andrews, therefore, implicitly allows the court to sua sponte 6 raise the § 1915(g) issue, but requires the court to notify the prisoner of the earlier dismissals that 7 the court considers to support a § 1915(g) dismissal and to allow the prisoner an opportunity to be 8 heard on the matter before dismissing the action. Andrews,

. A dismissal under § 9 1915(g) means that a prisoner cannot proceed with his action as a pauper under § 1915, but he still 10 may pursue his claims if he pays the full filing fee at the outset of the action. 11 It appears that Plaintiff has at least three strikes pursuant to § 1915(g): 12 1. Roberts v. Huckleberry, No. 18-1237 DAD SAB (E.D. Cal.), dismissed for failure to state a claim (dkt. 57). 13 2. Roberts v. KVSP Investigation Service Unit, No. 19-1055 AWI SAB (E.D. 14 Cal.), dismissed for failure to state a claim (dkts. 12, 14). 15 3. Roberts v. Riverside County Superior Court, No. 19-0446 VBF RAO (C.D. Cal.), dismissed for failure to state a claim (dkt. 9). 16 4. Roberts v. Riverside County Superior Court, No. 20-0197 VBF RAO (C.D. 17 Cal.), dismissed for failure to state a claim. (dkt. 4). 18 5. Roberts v. CDCR Trust Office, No. 20-0977 VBF RAO (C.D. Cal.), dismissed as frivolous, malicious or for failure to state a claim (dkt. 5). 19 Plaintiff is ORDERED to show cause within twenty-eight (28) days of service of this order, why 20 this case should not be deemed three-strikes barred under § 1915(g), and why his application to 21 proceed in forma pauperis should not be denied, resulting in the dismissal of his case. In the 22 alternative to showing cause why the action should not be dismissed, Plaintiff may avoid dismissal 23 by simply paying the full $402.00 filing fee within the deadline set forth above. Failure to either 24 show cause, or to pay the full filing fee, may result in dismissal. The Clerk shall UPDATE 25 Plaintiff’s address and inmate number to David Roberts, #BA0958, Wasco State Prison, P.O. Box 26 7700, Wasco, CA 93280. 27 // 1 IT IS SO ORDERED. 2 || Dated: January 25, 2021 3 4 RQBERT M. ILLMAN 5 United States Magistrate Judge 6 7 8 9 10 11 a 12

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