1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 TERRANCE BROWNLEE, Case No. 20-cv-04664-WHO (PR)

Plaintiff, 8 ORDER OF DISMISSAL v. 9

10 J. VERNON, et al., Dkt. Nos. 3 and 11 Defendants. 11

12 13 INTRODUCTION 14 Plaintiff Terrance Brownlee is barred from bringing this action in forma pauperis 15 because he has filed at least three federal actions that were dismissed as frivolous, 16 malicious, or on grounds that they failed to state a claim for relief. He was ordered to 17 show cause why pauper status should not be barred, but he has not shown any reason the 18 suit should not be dismissed. Accordingly, this federal civil rights action is DISMISSED 19 without prejudice to Brownlee bringing his claims in a new paid complaint. 20 BACKGROUND 21 Brownlee, a state prisoner and frequent litigant in federal court, filed this federal 22 civil rights action under

along with a motion to proceed in forma 23 pauperis (IFP) under

. He was ordered to show cause why the action 24 should not be dismissed under

(g), which provides that a prisoner may 25 not bring a civil action IFP “if the prisoner has, on 3 or more prior occasions, while 26 incarcerated or detained in any facility, brought an action or appeal in a court of the United 27 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a 1 serious physical injury.” (Dkt. No. 9.) The Order identified three prior federal court 2 actions (“strikes”) that appeared to count under section 1915(g) and allowed plaintiff an 3 opportunity to respond, as required by Andrews v. King,

(9th Cir. 2005). 4 The Order also informed Brownlee he could avoid dismissal by paying the filing fee by the 5 deadline. 6 The strikes identified were: 7 (1) Brownlee v. Hoffman, No. 2:00-cv-02666-LKK-JFM (E.D. Cal. Aug. 7, 2001) 8 (suit dismissed upon the recommendation of a magistrate judge for failure to state a claim 9 on which relief can be granted); 10 (2) Brownlee v. Smith, No. 2:03-cv-00746-DFL-DAD (E.D. Cal. Jun. 17, 2003) 11 (suit dismissed upon the recommendation of a magistrate judge for failure to state a claim 12 on which relief can be granted); 13 (3) Brownlee v. Armoskus, 2:07-cv-02040-KJD-PAL (E.D. Cal. Jan. 26, 2011) (suit 14 dismissed upon the recommendation of a magistrate judge for failure to state a claim on 15 which relief can be granted). 16 The Ninth Circuit regards these three suits as strikes. In an appeal from a judgment 17 issued by the undersigned, the Ninth Circuit ordered Brownlee to show cause why the 18 above suits should not bar him from proceeding IFP. The federal appellate court found 19 Brownlee’s response to the Order to Show Cause insufficient, revoked his IFP status, and 20 ordered him to pay the full filing fee. When Brownlee failed to pay the fee, the Ninth 21 Circuit dismissed the appeal for failure to prosecute. Brownlee v. Lam, No. 18-16923 (9th 22 Cir. Sept. 10, 2019). 23 DISCUSSION 24 In his complaint and his response to the Order to Show Cause, Brownlee states in a 25 conclusory fashion that he qualifies under the imminent danger exception to § 1915(g). 26 (Dkt. Nos. 1 and 13.) 27 This is an insufficient showing. The exception under section 1915(g) applies if the 1 || physical injury” at the time of filing.

(g); Andrews v. Cervantes, 493 2 || F.3d 1047, 1055 (9th Cir. 2007). For the exception to apply, the court must look to the 3 || conditions the “prisoner faced at the time the complaint was filed, not at some earlier or 4 || later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner allege “an ongoing 5 || danger” to satisfy the imminency requirement). 6 Brownlee’s allegations of imminent danger are conclusory. He has not shown any 7 || reason that the restrictions of section 1915(g) should not be imposed. He has failed to (i) 8 || pay the filing fee; (11) show that any of the strikes do not qualify under section 1915(g); 9 (iii) show that he qualifies for the imminent danger exception; or (iv) otherwise show 10 || cause why this action should not be dismissed. 11 Accordingly, Brownlee’s IFP application is DENIED. (Dkt. No. 3.) His motion for 2 the appointment of counsel is also DENIED. (Dkt. No. 11.) This civil rights action is 5 13 || DISMISSED without prejudice to Brownlee bringing his claims in a new paid complaint. S 14 CONCLUSION 3 15 This action is DISMISSED without prejudice and all pending motions are DENIED. a 16 || The Clerk shall terminate all pending motions, enter judgment in favor of defendants, and 3 17 || close the file. 18 IT IS SO ORDERED. 19 || Dated: February 3, 2021 . \f CE ® *0 21 United States District Judge 22 23 24 25 26 27 28