1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 11 DARONTA TYRONE LEWIS, Case No. 20-cv-02164-WHO (PR)

Plaintiff, 12 ORDER TO SHOW CAUSE WHY v. 13 PAUPER STATUS IS NOT BARRED

14 CONTRA COSTA COUNTY, et al., Defendants. 15

16 17 On August 19, 2020, I referred this case for possible placement with a pro bono 18 attorney and issued a stay of proceedings. Dkt. No. 25. The day before, I had dismissed 19 plaintiff Daronta Lewis’s federal civil rights action under

after review 20 and granted his status to proceed in forma pauperis (IFP). Dkt. Nos. 24 and 25. The 21 Federal Pro Bono Project has been unable to place this case with pro bono counsel. The 22 stay is lifted. 23 Plaintiff Daronta Lewis may proceed pro se. But I have learned in the interim that 24 he may not be entitled to IFP status under

because he has brought three 25 or more lawsuits that were frivolous, malicious or failed to state a claim on which relief 26 could be granted. Accordingly, Lewis is ordered to show cause on or before July 6, 27 2021 why

(g) does not bar pauper status. 1 A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. 2 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in 3 any facility, brought an action or appeal in a court of the United States that was dismissed 4 on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may 5 be granted, unless the prisoner is under imminent danger of serious physical injury.” 6

(g). Relying on the statute’s command that “in no event” may such a 7 prisoner proceed, the Ninth Circuit explained that this bar is triggered by a prisoner’s 8 history of filing frivolous litigation rather than by the merits of the current action. See El- 9 Shaddai v. Zamora,

(9th Cir. 2016) (emphasis in original). 10 Under the law of this circuit, a plaintiff must be afforded an opportunity to persuade 11 the court that section 1915(g) does not bar pauper status for him. See Andrews v. King, 12

(9th Cir. 2005). Andrews requires that the prisoner be given notice of 13 the potential applicability of section 1915(g), by either the district court or the defendants, 14 but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g) 15 does not bar pauper status for him.

Andrews implicitly allows the court to raise sua 16 sponte the section 1915(g) problem, but requires the court to notify the prisoner of the 17 earlier dismissals it considers to support a section 1915(g) dismissal and allow the prisoner 18 an opportunity to be heard on the matter before dismissing the action.

A dismissal 19 under section 1915(g) means that a prisoner cannot proceed with his action as a pauper 20 under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the 21 outset of the action. 22 Lewis has had at least three prior prisoner actions or appeals dismissed by a federal 23 court on the grounds that they are frivolous, malicious, or that they failed to state a claim 24 upon which relief may be granted: 25 (1) Lewis v. Ugwueze (Ugwueze), No. 1:20-cv-00575-DAD-SKO (E.D. Cal. Oct. 5, 26 2020) (complaint dismissed as duplicative by a district judge upon the 27 recommendation of a magistrate judge, after plaintiff admitted he had intentionally 1 (2) Lewis v. Allio (Allio), No. 2:18-cv-00196-JAM-CKD (E.D. Cal. Oct. 3, 2018) 2 (complaint dismissed with leave to amend by a magistrate judge1 because plaintiff 3 failed to identify a cognizable claim; suit ultimately dismissed by a district judge for 4 failure to file an amended complaint); 5 (3) Lewis v. Hoagland (Hoagland), No. 2:11-cv-01763-GGH (E.D. Cal. Nov. 18, 2011) 6 (complaint dismissed with leave to amend by a magistrate judge because plaintiff 7 failed to identify any defendant who was personally involved in the alleged 8 wrongful acts; suit ultimately dismissed by a district judge for failure to file an 9 amended complaint); 10 (4) Lewis v. Brown (Brown), No. 2:09-cv-00195-FCD-DAD (E.D. Cal. Oct. 15, 2009) 11 (amended complaint dismissed with leave to amend by a magistrate judge because 12 allegations were prolix, vague, conclusory, and violated Rule 8(a)’s requirement for 13 a “short and plain” statement, and on its face the amended complaint was either 14 “frivolous or fail[ed] to state a claim”; suit ultimately dismissed by a district judge 15 after plaintiff failed to file a second amended complaint); 16 (5) Lewis v. Antonen (Antonen), No. 2:08-cv-01764-WBS-KJM (E.D. Cal. Nov. 12, 17 2009) (amended complaint dismissed with leave to amend by a magistrate judge 18 because allegations were prolix, vague, conclusory, and violated Rule 8(a)’s 19 requirement for a “short and plain” statement, and on its face the amended 20 complaint was either “frivolous or fail[ed] to state a claim”; suit ultimately 21 dismissed by a district judge after plaintiff failed to file a second amended 22 complaint); and 23 (6) Lewis v. Neilson (Neilson), No. 2:06-cv-01532-FCD-CMK (E.D. Cal. March 27, 24 2007) (complaint dismissed with leave to amend by a magistrate judge because 25 allegations were prolix, vague, conclusory, and violated Rule 8(a)’s requirement for 26 1 That a magistrate judge, rather than a district judge, issued the order is of no moment. 27 See Hoffmann v. Pulido,

(9th Cir. 2019) (holding that a dismissal 1 a “short and plain” statement, and on its face the complaint was either “frivolous or 2 fail[ed] to state a claim”; suit ultimately dismissed by a district judge after plaintiff 3 failed to file an amended complaint). 4 Each of these dismissals counts as a strike under the Prison Litigation Reform Act 5 (PLRA). As to Ugwueze, the Ninth Circuit has expressly recognized that a duplicative suit 6 is either frivolous or malicious, and thus the dismissal of such a suit qualifies as a strike 7 under the PLRA. See Cato v. United States,

, 1105 n.2 (9th Cir. 1995) 8 (recognizing that a duplicative complaint is either frivolous or malicious); LeBlanc v. 9 Asuncion,

(9th Cir. 2017) (holding that dismissal of duplicative 10 complaint was properly deemed a strike) (citing Cato,

n.2). As to Allio, 11 the failure to assert a cognizable claim constitutes a strike, as does the failure to file an 12 amended complaint after an initial complaint was dismissed with leave to amend. See 13 Belanus v. Clark,

(9th Cir. 2015) (affirming district court’s 14 conclusion that the failure to assert a cognizable claim counted as a strike); Harris v. 15 Mangum,

(9th Cir. 2017) (where complaint is dismissed with leave to 16 amend, and prisoner fails to amend, the dismissal counts as a strike). As to Hoagland, the 17 failure to name a proper defendant constitutes as a strike, as does the failure to file an 18 amended complaint after an initial complaint was dismissed with leave to amend. See 19 O’Neal v. Price,

(9th Cir. 2008) (affirming district court’s 20 determination that dismissal was a strike where, among other things, the court dismissed 21 for failure to name proper defendant); Harris,

. As to Brown, Antonen, 22 and Neilson, the failure to correct a vague, conclusory, and prolix complaint after having 23 been given leave to do so constitutes a strike, as does the failure to amend a complaint after 24 having been given leave to do so. See Knapp v. Hogan,

, 1108–09 (9th Cir. 25 2013) (“We hold that repeated and knowing violations of Federal Rule of Civil Procedure 26 8(a)’s ‘short and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ . . . 27 when the opportunity to correct the pleadings has been afforded and there has been no 1 In light of these dismissals, and because Lewis does not appear to be under 2 |} imminent danger of serious physical injury, the Court now orders him to show cause why 3 || IFP status should not be denied and the present suit should not be dismissed pursuant to 4 |}

(g). 5 Lewis’s response to this order to show cause is due no later than July 6, 2021. The 6 || response must clearly be labeled “RESPONSE TO ORDER TO SHOW CAUSE.” In the 7 || alternative to showing cause why this action should not be dismissed, Lewis may avoid 8 || dismissal by paying the full filing fee of $400.00 by July 6, 2021. 9 Failure to file a response by July 6, 2021, or failure to pay the full filing fee by that 10 || date, will result in the dismissal of this action without prejudice to plaintiff bringing his 11 || claims in a new paid complaint. 2 Lewis filed numerous motions while this case was stayed. All pending motions are 5 13 || DENIED as moot. The Clerk shall terminate all pending motions. In the event Lewis S 14 || shows cause that this suit should not be dismissed under § 1915(g), or pays the full filing 3 15 || fee, he will be allowed to file an amended complaint that addresses the deficiencies noted a 16 || in the Order dismissing his complaint.

17 IT ISSO ORDERED. || Dated: May 19, 2021 h ( . \f 0 19 . LIAM H. ORRICK 20 United States District Judge 21 22 23 24 25 26 27 28