Johnson v. Cuevas

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA PAUL DAVID JOHNSON, Case No. 21-cv-05264-JSW 8 Plaintiff, ORDER GRANTING RECONSIDERATION; VACATING 9 v. JUDGMENT; REVOKING IN FORMA PAUPERIS STATUS; TO PAY FILING 10 A. CUEVAS, et al., FEE 11 Defendants. Re: Dkt. No. 26 12 Plaintiff was granted leave to file an amended complaint, but the case was then dismissed because the Court did not receive his amended complaint before the deadline. Shortly thereafter, Plaintiff filed his amended complaint. In light of the fact that Plaintiff is proceeding pro se and is incarcerated, the lateness of his amended complaint is excused. Reconsideration of the dismissal order is GRANTED, the judgment is VACATED, and the case is REOPENED.

17 Plaintiff was previously granted leave to proceed in forma pauperis. The Prison Litigation Reform Act of 1995 ("PLRA") provides that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). A prisoner must be given notice of the potential applicability of Section 1915(g), by either the district court or the defendants, but the prisoner bears the ultimate burden of persuasion that Section 1915(g) does not bar pauper status for him. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

27 Plaintiff has had three or more cases or appeals that qualify as dismissals under Section Johnson vy. Agpoon, Case No. 21-15606 (9th Cir., Sept. 16, 2021) (appeal dismissed as frivolous); Johnson v. Agpoon, Case No. 20-cv-06676-LHK (N.D. Cal., Mar. 9, 2021) (dismissed for failure to state a claim upon which relief may be granted); Johnson v. Davis, Case No. 20-cv-0285 1-LHK || (N.D. Cal., Jan. 4, 2021) (dismissed for failure to state a claim upon which relief may be granted); Johnson vy. California Prison Industry Authority, Case No. CIV S-11-0164 CKD P (E.D. Cal., || Dec. 21, 2011) (dismissed for failure to file amended complaint after dismissal for failure to state a upon which relief may be granted); Johnson v. Sisto, Case No. 08-cv-01962-RRC (E.D. Cal., July 26, 2010) (dismissed for failure to state a claim upon which relief may be granted).

9 As Plaintiff has at least three strikes, he may not proceed in forma pauperis unless he was |] in any imminent danger of serious physical injury when he filed this case. The plain language of 11 the imminent danger clause in Section 1915(g) indicates that "imminent danger" is to be assessed 12 at the time the prisoner filed his case. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

5 13 || The complaint sets forth no imminent danger --- the allegation is simply that Plaintiff was not || allowed to return to the law library in violation of his Equal Protection rights. The imminent 15 danger exception does not apply. a 16 Leave to proceed in forma pauperis is REVOKED. Within 28 days of the date this order is 17 || filed, plaintiff must pay the full $350.00 filing fee; failure to do so will result in the dismissal of 18 this case without prejudice to Plaintiff bringing his claims in a new civil rights case in which || he pays the filing fee.

20 IT IS SO ORDERED.

21 Dated: January 17, 2023 22 vo} / 23 \ Luu □□□□ ‘A S. vi ITE / “Unitld Statesistrict Judge