holding that a dismissal 1 amendment
How later courts described this case
- holding that a dismissal 1 amendment
- recognizing that the 9 failure to state a claim constitutes a strike
- “We 23 hold that repeated and knowing violations of Federal Rule of Civil Procedure 8(a
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 SHAWN DAMON BARTH, Case No. 20-cv-05137-WHO (PR)
Plaintiff,
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ORDER TO SHOW CAUSE WHY
v.
9 PAUPER STATUS IS NOT BARRED
10 SERINTENO, et al.,
Defendants.
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13 I dismissed plaintiff Shawn Barth’s original 42 U.S.C. § 1983 complaint with leave
14 to amend and granted his motion to proceed in forma pauperis (IFP). (Dkt. Nos. 9 and
15 10.) After he filed an amended complaint, I learned that he may not be entitled to IFP
16 status under 28 U.S.C. § 1915 because he has brought three or more lawsuits that were
17 frivolous, malicious or failed to state a claim on which relief could be granted.
18 Accordingly, Barth is ordered to show cause on or before July 6, 2021 why 28 U.S.C.
19 § 1915(g) does not bar pauper status.
20 A prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C.
21 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
22 any facility, brought an action or appeal in a court of the United States that was dismissed
23 on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may
24 be granted, unless the prisoner is under imminent danger of serious physical injury.”
25 28 U.S.C. § 1915(g). Relying on the statute’s command that “in no event” may such a
26 prisoner proceed, the Ninth Circuit explained that this bar is triggered by a prisoner’s
27 history of filing frivolous litigation rather than by the merits of the current action. See El-
1 Under the law of this circuit, a plaintiff must be afforded an opportunity to persuade
2 the court that section 1915(g) does not bar pauper status for him. See Andrews v. King,
3 398 F.3d 1113, 1120 (9th Cir. 2005). Andrews requires that the prisoner be given notice of
4 the potential applicability of section 1915(g), by either the district court or the defendants,
5 but also requires the prisoner to bear the ultimate burden of persuasion that section 1915(g)
6 does not bar pauper status for him. Id. Andrews implicitly allows the court to raise sua
7 sponte the section 1915(g) problem, but requires the court to notify the prisoner of the
8 earlier dismissals it considers to support a section 1915(g) dismissal and allow the prisoner
9 an opportunity to be heard on the matter before dismissing the action. Id. A dismissal
10 under section 1915(g) means that a prisoner cannot proceed with his action as a pauper
11 under section 1915(g), but he still may pursue his claims if he pays the full filing fee at the
12 outset of the action.
13 Here, Barth has had at least three prior prisoner actions or appeals dismissed by a
14 federal court on the grounds that they are frivolous, malicious, or that they failed to state a
15 claim upon which relief may be granted:
16 (1) Barth v. Beard (Beard), No. 2:16-cv-01469-DMG-RAO (C.D. Cal. Feb. 26, 2019)
17 (complaint dismissed by a district judge upon the recommendation of a magistrate
18 judge,1 because plaintiff failed to state a claim, and additionally one of his four
19 claims was Heck-barred on the face of the complaint, and two defendants were
20 entitled to sovereign immunity on the face of the complaint);
21 (2) Barth v. Kernan (Kernan), No. 2:18-cv-04763-DMG-RAO (C.D. Cal. Sept. 10,
22 2018) (complaint dismissed with leave to amend because plaintiff failed to state a
23 claim, one of his four claims was additionally Heck-barred on the face of the
24 complaint, and defendants were entitled to sovereign immunity on the face of the
25 complaint; ultimately dismissed because plaintiff failed to cure any defect upon
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1 That a magistrate judge, rather than a district judge, issued the order is of no moment. See
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Hoffmann v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019) (holding that a dismissal
1 amendment); and
2 (3) Barth v. Muniz (Muniz), No. 3:18-cv-01242-WHO (N.D. Cal. May 31, 2019)
3 (amended complaint dismissed for failure to state a claim and because allegations
4 were prolix; suit ultimately dismissed after plaintiff failed to cure any defect upon
5 amendment).2
6 Both the Beard and Kernan dismissals are strikes under the Prison Litigation
7 Reform Act (PLRA). The failure to state a claim clearly constitutes a strike. See Moore v.
8 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (recognizing that the
9 failure to state a claim constitutes a strike). In addition, the Ninth Circuit has expressly
10 held that where “Heck’s bar to relief is obvious from the face of the complaint,” “a
11 dismissal may constitute a PLRA strike for failure to state a claim.” Washington v. Los
12 Angeles Cty. Sheriff's Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016). Similarly, “where an
13 affirmative defense, such as immunity, [is] clear on the face of the complaint that dismissal
14 may qualify as a strike for failure to state a claim.” Harris v. Harris, 935 F.3d 670, 676
15 (9th Cir. 2019) (citation omitted). In Beard and Kernan, the magistrate and district judges
16 screened the complaints, concluded that the complaints were facially defective because
17 they failed to state a claim, were barred by Heck, and were barred by sovereign immunity,
18 and dismissed for these obvious defects.
19 The dismissal in Muniz also constitutes a strike. As noted above, the district court’s
20 conclusion that plaintiff failed to state a claim is a strike. See Moore, 657 F.3d at 893-94.
21 The failure to correct a prolix complaint after having been given leave to do so also
22 constitutes a strike. See Knapp v. Hogan, 738 F.3d 1106, 1108–09 (9th Cir. 2013) (“We
23 hold that repeated and knowing violations of Federal Rule of Civil Procedure 8(a)’s ‘short
24 and plain statement’ requirement are strikes as ‘fail[ures] to state a claim,’ . . . when the
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2 The Court’s dismissal was upheld on appeal: “The district court did not abuse its
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discretion in dismissing Barth’s action without prejudice because Barth failed to comply
with the district court’s orders to file an amended complaint that alleged a closely related
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set of claims, despite multiple warnings to comply with federal pleading and joinder
1 || opportunity to correct the pleadings has been afforded and there has been no modification
2 || within a reasonable time.”) (citation omitted).
3 In light of these dismissals, and because Barth does not appear to be under
4 || imminent danger of serious physical injury, the Court now orders him to show cause why
5 || IFP status should not be denied and the present suit should not be dismissed pursuant to
6 |} 28 U.S.C. § 1915(g).
7 Barth’s response to this order to show cause is due no later than July 6, 2021. The
8 || response must clearly be labeled “RESPONSE TO ORDER TO SHOW CAUSE.” In the
9 || alternative to showing cause why this action should not be dismissed, Barth may avoid
10 || dismissal by paying the full filing fee of $400.00 by July 6, 2021.
11 Failure to file a response by July 6, 2021, or failure to pay the full filing fee by that
2 date, will result in the dismissal of this action without prejudice to Barth bringing his
5 13 || claims in a new paid complaint.
IT IS SO ORDERED.
|) Dated: May 21, 2021 . \f CE
‘6 LLIAMH.ORRICK
17 United States District Judge
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