Case 2:22-cv-02909-PA-JDE Document 4 Filed 05/06/22 Page 1 of 5 Page ID #:13

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 ERIC GRIFFIN, ) Case No. 2:22-cv-02909-PA-JDE ) 12 Plaintiff, ) ) ORDER TO SHOW CAUSE WHY 13 v. ) THIS ACTION SHOULD NOT BE ) 14 LOS ANGELES COUNTY JAIL, ) DISMISSED PURSUANT TO 28 ) U.S.C. § 1915(g) et al., ) 15 ) Defendants. ) 16 ) ) 17

18 On April 29, 2022, the Court received from Eric Griffin (“Plaintiff”), an 19 inmate or detainee at the North County Correctional Facility in Castaic, 20 California, proceeding pro se, a civil rights complaint against the Los Angeles 21 County Jail and several defendants based on events occurring on February 21, 22 March 6, and March 28, 2022, relating to, among other things, his criminal 23 prosecution and confinement. Dkt. 1 (“Complaint”). Plaintiff seeks leave to 24 proceed in forma pauperis (“IFP”). Dkt. 2 (“IFP Request”). 25 Pursuant to

(g), a prisoner is prohibited from 26 “bring[ing] a civil action or appeal” IFP if the prisoner: 27 28 Case 2:22-cv-02909-PA-JDE Document 4 Filed 05/06/22 Page 2 of 5 Page ID #:14

1 has, on 3 or more prior occasions, while incarcerated or detained 2 in any facility, brought an action or appeal in a court of the United 3 States that was dismissed on the grounds that it is frivolous, 4 malicious, or fails to state a claim upon which relief may be 5 granted, unless the prisoner is under imminent danger of serious 6 physical injury. 7 Section 1915(g) “is commonly known as the ‘three strikes’ provision. ‘Strikes’ 8 are prior cases or appeals, brought while the plaintiff was a prisoner, which 9 were dismissed ‘on the ground that[they were] frivolous, malicious, or fail[] to 10 state a claim . . . .” Andrews v. King,

, 1116 n.1 (9th Cir. 2005) 11 (as amended) (first two alterations in original). Section 1915(g) provides a 12 narrow exception permitting a prisoner who has had three prior “strikes” but 13 who is in “imminent danger of serious physical injury” to proceed despite the 14 strikes.

(g); see also Lopez v. Smith,

(9th 15 Cir. 2000) (en banc). The danger must exist at the time the prisoner filed the 16 complaint, not at some earlier or later time. Andrews v. Cervantes,

(9th Cir. 2007) (as amended). 18 Courts may raise Section 1915(g) sua sponte and dismiss the action after 19 providing the plaintiff with an opportunity to be heard. See Andrews,

; see also Strope v. Cummings,

(10th Cir. 2011) 21 (courts “may raise the issue of strikes sua sponte”); Hernandez v. Ventura 22 Cty.,

, at *2 (C.D. Cal. Nov. 16, 2010) (“Courts may, sua 23 sponte, dismiss an action that is barred by Section 1915(g), but must notify the 24 prisoner/litigant of the strikes it considers to support such a dismissal, and 25 allow the prisoner an opportunity to be heard on the matter before dismissing 26 the case.”), report and recommendation adopted by

(C.D. 27 Cal. Dec. 15, 2010). Once the Court notifies a plaintiff that his case may be 28 subject to dismissal under Section 1915(g), the plaintiff bears the ultimate 2 Case 2:22-cv-02909-PA-JDE Document 4 Filed 05/06/22 Page 3 of 5 Page ID #:15

1 burden of persuading the Court that Section 1915(g) does not apply. Andrews, 2 398 F.3d at 1120. “A dismissal under Section 1915(g) is without prejudice to a 3 plaintiff refiling his civil rights complaint after prepayment of the full filing 4 fee.” Hernandez,

, at *2. 5 Here, although the Court makes no current findings, the docket of this 6 Court appears to reflect at least three prior civil actions filed by Plaintiff Eric 7 Griffin while incarcerated that resulted in dismissal and/or termination based 8 on findings that the actions were frivolous, malicious, or failed to state a claim 9 upon which relief may be granted under

(e)(2): 10 1. Eric Griffin v. The Department of Justice, et al., Case No. 2:10-cv- 11 03249-UA-MLG (C.D. Cal.), Dkt. 3 (order dismissing action as 12 frivolous, malicious or failing to state a claim upon which relief may 13 be granted); 14 2. Eric Griffin v. Metropolitan Detention Center, et al., Case No. 2:10- 15 cv-01658-PA-MLG (C.D. Cal.), Dkt. 23 (action under operative first 16 amended complaint dismissed as frivolous); 17 3. Eric Griffin v. LAPD, Case No. 2:98-cv-05513-UA (C.D. Cal.), Dkt. 18 2 (recommendation and order denying application to proceed IFP 19 and terminating action); and 20 4. Eric Griffin v. Los Angeles Police Department, et al., Case No. 2:97- 21 cv-05762-UA (C.D. Cal.), Dkt. 4 (recommendation and order 22 denying application to proceed IFP and terminating action). 23 In addition, at least four other district courts have found plaintiff Eric 24 Griffin, in attempting to proceed IFP in civil rights actions against jailers, has 25 received at least three prior “strikes” under

(g). See Eric 26 Griffin v. Nevada Southern Detention Center, et al., Case No. CIV 11-564- 27 TUC-DCB (D. Ariz.), Dkt. 8 (dismissing action under Section 1915(g), finding 28 Plaintiff had suffered three “strikes” in case numbers 10-1171-PMP-LRL, 10- 3 Case 2:22-cv-02909-PA-JDE Document 4 Filed 05/06/22 Page 4 of 5 Page ID #:16

1 1204-KJD-PAL, and 10-1253-GMN-LRL in the District of Nevada); Eric 2 Griffin, et al., v. U.S. Marshals, et al., Case No. 10-cv-2246-H(CAB) (S.D. 3 Cal.), Dkt. 4 (same); Eric Griffin v. U.S. Marshal Service, et al., Case No. 10- 4 3450-cv-S-DW-P (W.D. Mo.), Dkt. 5 (same); see also William Fransico and 5 Eric Griffin v. North Las Vegas Police Department and Department of Justice, 6 Case No. 2-10-cv-01208-PMP-RJJ (D. Nev.), Dkt. 4 (ordering dismissal of civil 7 rights action by plaintiff Eric Griffin under

(g) unless plaintiff 8 pays the filing fee, based on plaintiff having had three or more actions 9 dismissed for failure to state a claim upon which relief can be granted, or as 10 frivolous or malicious, without a showing of imminent danger of serious 11 physical injury). 12 Separately, although the Court does not consider these findings to be 13 “strikes” under

(g), the Court notes that, by order dated July 14 18, 2018, the Ninth Circuit, in Eric Griffin v. Nancy A. Berryhill, Case No. 18- 15 55774 (9th Cir.) dismissed an appeal “[b]ecause the appeal is so insubstantial 16 as to not warrant further review,” and separately, by order dated August 25, 17 2010, the circuit, in Eric Griffin v. Metropolitan Detention Center, et al., Case 18 No. 10-55797 (9th Cir.) denied an IFP application “because we find that the 19 appeal is frivolous,” although the appeal was subsequently dismissed for a 20 different reason. 21 As it appears that Plaintiff, a “prisoner,” has had at least three prior civil 22 actions or proceedings he commenced as a prisoner or detainee dismissed as 23 frivolous, it appears the instant action is subject to dismissal under 28 U.S.C. 24 § 1915(g). Although the Complaint contains wide-ranging allegations, Plaintiff 25 does not allege he is currently under imminent danger of serious physical 26 injury. 27 Accordingly, Plaintiff is ORDERED TO SHOW CAUSE why his 28 request to proceed IFP should not be denied on the grounds that he has 4 Case 2:22-cv-02909-PA-JDE Document 4 Filed 05/06/22 Page5of5 Page ID#:17

1 || suffered three or more “strikes” within the meaning of

(g) and 2 || has not plausibly alleged that he is currently under imminent danger of serious 3 || physical injury. Within twenty-one (21) days of this Order, Plaintiff shall file 4 ||a written response to this Order setting forth any legal or factual basis why this 5 |}action should not be dismissed under

(g). In the alternative, 6 || Plaintiff may avoid dismissal by paying the full filing fee within this deadline. 7 The Court warns Plaintiff that failure to timely respond as directed in 8 ||this Order may result in the denial of Plaintiff's IFP request and the dismissal 9 || of this action. 10 11 ||Dated: May 06, 2022 ff 12 Lie he cies 3 ND. EARLY nited States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28