The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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KENNETH EVANS,
7 Case No. 21-cv-01383-YGR (PR)
Plaintiff,
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v. ORDER TO SHOW CAUSE
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RON BLOOMFIELD, et al.,
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Defendants.
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12 Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under
13 42 U.S.C. § 1983, seeking damages for alleged civil rights violations. Plaintiff has also filed a
14 motion for leave to proceed in forma pauperis (“IFP”). Dkt. 2. For the reasons stated below, the
15 Court orders Plaintiff to show cause why his motion for leave to proceed IFP should not be
16 denied, and this action should not be dismissed pursuant to 28 U.S.C. § 1915(g).
17 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became effective,
18 on April 26, 1996. It provides that a prisoner may not bring a civil action IFP under 28 U.S.C.
19 § 1915 “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any
20 facility, brought an action or appeal in a court of the United States that was dismissed on the
21 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,
22 unless the prisoner 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 phrase “fails to
24 state a claim on which relief may be granted” parallels the language of Federal Rule of Civil
25 Procedure 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is
26 “of little weight or importance: having no basis in law or fact,” and the word “malicious” refers to
27 a case “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113,
1 counted as strikes for section 1915(g) purposes. See id. Dismissal of an action under section
2 1915(g) should only occur when, “after careful evaluation of the order dismissing an [earlier]
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.
5 Andrews requires that the prisoner be given notice of the potential applicability of section
6 1915(g), by either the district court or the defendants, but also requires the prisoner to bear the
7 ultimate burden of persuasion to show that section 1915(g) does not bar pauper status in this case.
8 Id. Andrews implicitly allows the court to raise the section 1915(g) problem sua sponte, but
9 requires the court to notify the prisoner of the earlier dismissals it considers to support a section
10 1915(g) dismissal and allow the prisoner an opportunity to be heard on the matter before
11 dismissing the action. See id. at 1120. A dismissal under section 1915(g) means that a prisoner
12 cannot proceed with his action as a pauper under section 1915(g), but he still may pursue his
13 claims if he pays the full filing fee at the outset of the action.
14 A review of the dismissal orders in Plaintiff’s prior prisoner actions reveals that he has had
15 at least four such cases dismissed on the ground that they were frivolous, malicious, or failed to
16 state a claim upon which relief may be granted. Plaintiff is now given notice that the Court
17 believes the following federal district court dismissals may be counted as dismissals for purposes
18 of section 1915(g): (1) Evans v. Brown, et al., No. CV 04-2491 UA (SS) (C.D. Cal. Apr. 28, 2004)
19 (district court denied IFP status because civil rights complaint was frivolous and all defendants
20 were immune from liability); (2) Evans v. Lt. Evans, et al., No. CV 05-5044 DDP (SS) (C.D. Cal.
21 Feb. 25, 2008) (granting motion for judgment on the pleadings upon determining that civil rights
22 amended complaint must be dismissed for failure to state a claim as a matter of law); (3) Evans v.
23 Dep’t Corr. & Rehab., et al., No. CV 10-6919 UA (SS) (C.D. Cal. Mar. 2, 2011) (district court
24 denied IFP status because civil rights complaint failed to state a claim upon which relief may be
25 granted); and (4) Evans v. Access Securepak Co., et al., No. CV 12-9472 UA (SS) (C.D. Cal. Dec.
26 5, 2012) (same). The Court has evaluated each of these cases based on their dismissal orders. See
27 Andrews, 398 F.3d at 1120.
1 danger of serious physical injury, see Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007),
2 || Plaintiff is ORDERED TO SHOW CAUSE in writing no later than twenty-eight (28) days from
3 the date of this Order why his motion for leave to proceed IFP should not be denied and this action
4 should not be dismissed pursuant to 28 U.S.C. § 1915(g). If Plaintiff is so inclined, he may avoid
5 dismissal by paying the $400.00 filing fee. In any event, the Court will continue to review under
6 section 1915(g) all future actions filed by Plaintiff while he is incarcerated and in which he seeks
7 IFP status.
8 Failure to file a timely response or failure to pay the full filing fee in will result in the
9 || dismissal of this action without further notice to Plaintiff.
10 IT IS SO ORDERED.
11 || Dated: July 23, 2021
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JUDG ONNE GONZALEZ ROGERS
13 United States District Judge
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