1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 REGINALD EDWARD SPEARMAN, Case No. 24-cv-09480-EKL

8 Plaintiff, ORDER TO SHOW CAUSE v. 9

10 CHIU, et al., Defendants. 11

12 13 Plaintiff, a detainee at Sacramento County Jail, filed a pro se civil rights complaint under 14

. He has applied to proceed in forma pauperis, but it appears that he is three 15 strikes barred and cannot proceed in forma pauperis pursuant to

(g), unless he is 16 under imminent danger of serious physical injury. 17 DISCUSSION 18 Legal Standard 19 Congress forbids a prisoner from bringing a civil action in forma pauperis under 28 U.S.C. 20 § 1915, if the prisoner has, on three or more prior occasions, while incarcerated or detained in any 21 facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 22 that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 23 prisoner is under imminent danger of serious physical injury.

(g). Relying on the 24 statute’s command that “in no event” may such a prisoner proceed, the Ninth Circuit has explained that 25 this bar is triggered by a prisoner’s history of filing frivolous litigation rather than by the merits of the 26 current action. See El-Shaddai v. Zamora,

(9th Cir. 2016) (emphasis in original). 27 For purposes of a dismissal that may be counted under Section 1915(g), the phrase “fails to 1 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is 2 “‘of little weight or importance: having no basis in law or fact,’” and the word “malicious” refers 3 to a case “filed with the ‘intention or desire to harm another.’” Andrews v. King,

, 4 1121 (9th Cir. 2005) (citation omitted). Dismissal of an action under Section 1915(g) should only 5 occur when, “after careful evaluation of the order dismissing an [earlier] action, and other relevant 6 information, the district court determines that the action was dismissed because it was frivolous, 7 malicious or failed to state a claim.”

. 8 Andrews requires that a prisoner be notified of the potential applicability of Section 9 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the 10 ultimate burden of persuasion that Section 1915(g) does not bar pauper status for him.

11 Andrews implicitly allows the court to sua sponte raise the Section 1915(g) problem but requires 12 the court to notify the prisoner of the earlier dismissals it considers may support a Section 1915(g) 13 dismissal and allow the prisoner an opportunity to be heard on the matter before dismissing the 14 action.

. A dismissal under Section 1915(g) means that a prisoner cannot proceed with 15 his action as a pauper under Section 1915, but he still may pursue his claims if he pays the full 16 filing fee at the outset of the action. 17 Analysis 18 Pursuant to Andrews, the Court now gives Plaintiff notice that he appears to have amassed 19 at least four Section 1915(g) dismissals: 20 1. Spearman v. B-Side Bar, No. 21-cv-1216 KJM DMC (E.D. Cal. April 12, 2023) 21 (case dismissed for failure to state a claim (ECF Nos. 10, 12)); 22 2. Spearman v. Towing, No. 21-cv-1288 KJM JDP (E.D. Cal. June 28, 2022) (case 23 dismissed as frivolous (ECF Nos. 7, 8)); 24 3. Spearman v. Sacramento County, No. 21-cv-1289 TLN JDP (E.D. Cal. July 25, 25 2022) (complaint dismissed with leave to amend for failure to state a claim (ECF No. 7), case 26 dismissed for failure to file an amended complaint (ECF No. 11)); and 27 4. Spearman v. Hillberg, No. 23-cv-0093 DJC DMC (E.D. Cal. Aug. 1, 2024) 1 for failure to file an amended complaint (ECF No. 13)). 2 The Court has evaluated each of these cases based on their dismissal orders. See Andrews 3 at 1120. Under precedent from the Ninth Circuit, each dismissal counts as a strike. See Moore v. 4 Maricopa Cty. Sheriff’s Office,

(9th Cir. 2011) (dismissal for failure to state 5 a claim constitutes a strike); Harris v. Mangum,

(9th Cir. 2017) (where 6 complaint is dismissed with leave to amend, and prisoner fails to amend, the dismissal counts as a 7 strike). Plaintiff does not appear entitled to proceed in forma pauperis. 8 Nor does it appear that plaintiff is entitled to proceed under the imminent danger 9 exception. The danger faced by the plaintiff must be “clearly related to [the] initial complaint.” 10 Williams v. Paramo,

(9th Cir. 2015) (discussing nexus requirement). The 11 plaintiff must allege that he is in imminent danger of serious physical injury at the time the 12 complaint is filed, and the allegation must be “plausible.” Andrews v. Cervantes,

, 13 1053 (9th Cir. 2007); see also

at 1057 n.11 (recognizing that “assertions of imminent danger . . 14 . may be rejected as overly speculative or fanciful, when they are supported by implausible or 15 untrue allegations . . . .”). 16 In the complaint, plaintiff alleges that in October 2024, he was detained at a bus stop in 17 San Francisco and involuntarily taken to the hospital even though he was not suffering from any 18 mental health issue. ECF No. 1 at 3. The doctor at the hospital confirmed that there was no issue 19 with plaintiff.

Plaintiff filed this case on December 12, 2024, while in detention at 20 Sacramento County Jail. Id. at 1, 5. Based on plaintiff’s complaint, it does not appear that he was 21 in imminent danger related to the incident in San Francisco, at the time he filed this action. 22 CONCLUSION 23 1. In light of plaintiff’s strikes, and because he does not appear plausibly to have been 24 in imminent danger of physical injury at the time of filing, he is ORDERED TO SHOW CAUSE 25 within twenty-eight days from the date of service of this order why his motion for leave to 26 proceed in forma pauperis should not be denied and this action should not be dismissed pursuant 27 to

(g). In his response, plaintiff may address how he is in imminent danger by 1 constitute strikes under Section 1915(g). 2 2. If plaintiff is so inclined, he may avoid dismissal of his action by paying the 3 $405.00 filing fee. The Court notes for plaintiffs benefit that this order does not constitute a 4 || screening of his claims pursuant to 28 U.S.C. § 1915A. Even if plaintiff pays the full filing fee for 5 this action, the Court still will be required to conduct an initial review of the pleadings pursuant to 6 || that statute. See 28 U.S.C. § 1915A(a)-(b). Failure to file a timely response or failure to pay the 7 || full filing fee will result in the dismissal of this action. 8 3. It is the plaintiffs responsibility to prosecute this case. Plaintiff must keep the 9 || Court informed of any change of address by filing a separate paper with the clerk headed “Notice 10 || of Change of Address,” and must comply with the Court’s orders in a timely fashion. Failure to 11 do so may result in the dismissal of this action for failure to prosecute pursuant to Federal Rule of 12 Civil Procedure 41(b). 13 IT IS SO ORDERED. || Dated: March 17, 2025

16 Gin 5 rami K.Lee nited States District Judge 18 19 20 21 22 23 24 25 26 27 28