# Brown v. Evans > District Court, N.D. California · November 30, 2020 URL: https://www.frixlaw.com/law-library/cases/10065945 ## Case - **Court:** District Court, N.D. California - **Decided:** November 30, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10065945 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 WILLIAM O BROWN, Case No. 20-cv-07152-JST 8 Plaintiff, ORDER TO SHOW CAUSE RE: 9 v. CONTEMPLATED DISMISSAL 10 M.S. EVANS, Warden, et al. Defendants. 11 12 13 Plaintiff, an inmate at Deuel Vocational Institution, filed this pro se civil rights action 14 pursuant to 42 U.S.C. § 19831 against Warden Evans and Monterey Superior Court. The Court 15 orders Plaintiff to show cause, within twenty-eight (28) days of the date of this order, why his 16 request to proceed in forma pauperis should not be denied. 17 I. BACKGROUND 18 A. Complaint 19 The complaint makes the following factual allegations. 20 On August 8, 2007, Plaintiff was deemed a vexatious litigant by the California courts. 21 Plaintiff was therefore subject to a prefiling order which prohibited him from filing any new 22 litigation in the state courts without first obtaining leave of court. See Cal. Civ. Proc. § 391.7. 23 Plaintiff has attempted to obtain leave of court to file lawsuits setting forth legitimate claims, but 24 1 Plaintiff raised his claims in both a petition for a writ of habeas corpus and a 42 U.S.C. § 1983, 25 and filed both at the same time. He stated that he did not know whether a habeas corpus action or a civil rights action was the right vehicle for his claims, and requested that the Court make the 26 determination. ECF No. 1 at 7. Because Plaintiff specified that he was not contesting or raising any issue concerning his conviction or sentence, ECF No. 1 at 1 and 10, the Court docketed his 27 complaint as a 42 U.S.C. § 1983 action. See Nettles v. Grounds, 830 F.3d 922, 931 (9th Cir. 2016) 1 his requests have been denied without reason. ECF No. 21 at 21. 2 In 2017 and 2019, plaintiff filed applications pursuant to Cal. Code Civ. Proc. § 391.8 3 seeking to vacate the prefiling order and remove his name from the Judicial Council’s list of 4 vexatious litigants. ECF No. 1 at 19. Plaintiff’s requests were denied. Plaintiff appealed this 5 denial to the California Court of Appeals, Sixth District. Plaintiff filed an opening brief, but the 6 respondent did not file an opposing brief. Despite Plaintiff’s appeal being unopposed, the state 7 appellate court also denied Plaintiff’s application. The California Supreme Court also issued a 8 one-word denial of Plaintiff’s application. The denials of his applications demonstrate that the 9 state courts are biased against him, and that he has effectively been permanently barred from filing 10 in state court. 11 The complaint alleges that his First Amendment right to petition and seek redress of 12 grievances has been denied by the state courts’ refusal to remove his name from the Judicial 13 Council’s list of vexatious litigants. ECF No. 1 at 21-22. 14 B. Plaintiff’s Other Actions 15 This is not the first time that Plaintiff has challenged his vexatious litigant status. 16 In Brown v. Monterey Cty. Sup. Ct., Plaintiff challenged his vexatious litigant status in a 17 habeas corpus petition. See Brown v. Monterey Cty. Sup. Ct., Case No. 16-cv-3944 DMR (N.D. 18 Cal.) (“Brown I”). Brown I was dismissed for lack of federal habeas jurisdiction because 19 Plaintiff’s claims would not hasten his release from custody. See Brown I, ECF No. 12 (Order of 20 Dismissal and Denying Certificate of Appealability) (N.D. Cal. Oct. 24, 2016). 21 In Brown v. Monterey Sup. Ct., Plaintiff again filed a habeas petition seeking an order 22 directing the Monterey Superior Court to remove him from its vexatious litigant list. See Brown v. 23 Monterey Sup. Ct., Case No. 18-cv-00638 (N.D. Cal.) (“Brown II”). The Court also found that 24 this petition lacked federal habeas jurisdiction.2 The Court ordered Plaintiff to show cause why 25 Brown II should not be dismissed under 28 U.S.C. § 1915(g) because he had at least three actions 26 or appeals dismissed on the grounds that they were frivolous, malicious, or failed to state a claim 27 1 upon which relief may be granted. The Court identified the qualifying cases as: (1) Brown v. Mule 2 Creek State Prison, et al., No. C 03-02365-GEB-GGH (E.D. Cal. June 13, 2005) (civil rights 3 action dismissed for failure to state a claim); (2) Brown v. Cal. Dep’t. of Corr., et al., No. 05-cv- 4 2067-CW (PR) (N.D. Cal. Jan. 25, 2006) (civil rights action dismissed for failure to state a claim); 5 (3) Brown v. Salinas Valley State Prison, No. C 05-2776 CW (PR) (N.D. Cal. Jan. 25, 2006) (civil 6 rights action dismissed for failure to state a claim); and (4) Brown v. Lee, No. 14-cv-4696 PJH 7 (PR) (N.D. Cal. Dec. 8, 2014) (civil rights action dismissed for failure to state a claim). Brown II, 8 ECF No. 10 (Order to Show Cause Re: Contemplated Dismissal) (Jun. 26, 2018). Plaintiff did not 9 respond to the Order to Show Cause and the Court denied plaintiff leave to proceed in forma 10 pauperis and dismissed Brown II for failure to pay the filing fee. Brown II, ECF No. 11 (Order of 11 Dismissal) (Aug. 23, 2018). 12 II. ANALYSIS 13 Before screening the complaint, the Court must first determine whether plaintiff may 14 proceed in forma pauperis or must pay the filing fee to proceed with this action. 15 A. Legal Standard 16 This action is governed by the Prison Litigation Reform Act of 1996 (“PLRA”) which was 17 enacted, and became effective, on April 26, 1996. The PLRA provides that a prisoner may not 18 bring a civil action under 28 U.S.C. § 1915, i.e., may not proceed in forma pauperis, “if the 19 prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, 20 brought an action . . . in a court of the United States that was dismissed on the grounds that it is 21 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 22 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 23 For purposes of a dismissal that may be counted under Section 1915(g), the Ninth Circuit 24 gives this guidance: The phrase “fails to state a claim on which relief may be granted” parallels 25 the language of Federal Rule of Civil Procedure 12(b)(6) and is applied by the courts in the same 26 manner. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). A case “is frivolous if it is ‘of 27 little weight or importance: having no basis in law or fact.’” Id. (citation omitted). “A case is 1 “Not all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used 2 to deny a prisoner’s IFP status only when, after careful evaluation of the order dismissing an 3 action, and other relevant information, the district court determines that the action was dismissed 4 because it was frivolous, malicious or failed to state a claim.” Id. at 1121. A district court is not 5 required to announce in an order that its dismissal constitutes a strike under Section 1915(g) for 6 that dismissal to later count as a strike. See id., 398 F.3d at 1119 n.8. 7 In determining whether a prior dismissal counts as a strike, the Court “should look to the 8 substance of the dismissed lawsuit, and not to how the district court labelled or styled the 9 dismissal.” Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019) (internal quotations marks and 10 citation omitted). To be counted as a strike, a case must be dismissed in its entirety as frivolous, 11 malicious or for failure to state a claim. Id. at 674. A dismissal based solely on a finding that the 12 plaintiff previously incurred at least three strikes, without any additional finding that the action is 13 itself frivolous, malicious or fails to state a claim, does not count as an additional strike under 14 § 1915(g). El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) 15 B. Plaintiff’s Strikes and the Imminent Danger Exception 16 The Court finds that, prior to this date, plaintiff has had at least three cases dismissed that 17 count as “strikes.” The Court takes judicial notice of: (1) Brown v. Mule Creek State Prison, et al., 18 No. C 03-02365-GEB-GGH (E.D. Cal. June 13, 2005) (civil rights action dismissed for failure to 19 state a claim); (2) Brown v. Cal. Dep’t. of Corr., et al., No. C 05-2067 CW (PR) (N.D. Cal. Jan. 20 25, 2006) (civil rights action dismissed for failure to state a claim); (3) Brown v. Salinas Valley 21 State Prison, No. C 05-2776 CW (PR) (N.D. Cal. Jan. 25, 2006) (civil rights action dismissed for 22 failure to state a claim); and (4) Brown v. Lee, No. C. 14-4696 PJH (PR) (N.D. Cal. Dec. 8, 2014) 23 (civil rights action dismissed for failure to state a claim). 24 In light of these dismissals, and because it does not appear that Plaintiff was under 25 imminent danger of serious physical injury when he filed the instant action, Plaintiff is 26 ORDERED TO SHOW CAUSE in writing within twenty-eight (28) days of this order, why in 27 forma pauperis status should not be denied and this action should not be dismissed pursuant to 28 1 filing fee by the deadline. 2 CONCLUSION 3 Accordingly, within twenty-eight (28) days of the date of this order, Plaintiff shall show 4 || cause why his request for leave to proceed in forma pauperis should not be denied pursuant to the 5 || three strikes provision set forth in 28 U.S.C. § 1915(g) or Plaintiff shall pay the full $400.00 filing 6 || fee. Failure to respond in accordance with this order will result in dismissal of this action without 7 further notice to Plaintiff. 8 IT IS SO ORDERED. 9 Dated: November 30, 2020 10 JON S. TIGAR' 11 nited States District Judge g 12 13 («14 15 16 17 Z 18 19 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10065945. Public record. Not legal advice.