where complaint is dismissed 12 with leave to amend, and prisoner fails to amend, the dismissal counts as a strike
How later courts described this case
- where complaint is dismissed 12 with leave to amend, and prisoner fails to amend, the dismissal counts as a strike
- “We hold that repeated and knowing violations of Federal Rule 17 of Civil Procedure 8(a
- an 14 individual bringing a claim under 42 U.S.C. § 1983 must base the pursuit of damages for an unconstitutional conviction on the reversal or invalidation of 15 the conviction and two defendants were entitled to sovereign immunity on 16 the face of the complaint
Written by the judges who cited it.
The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 ZURI SANA-KABISA YOUNG, Case No. 21-cv-07173-WHO (PR)
Plaintiff,
8
ORDER OF DISMISSAL
v.
9
10 KATHLEEN ALLISON, et al.,
Defendants.
11
12
13 INTRODUCTION
14 Plaintiff Zuri Sana-Kabisa Young is barred from bringing this action in forma
15 pauperis because he has filed at least three federal actions that were dismissed as frivolous,
16 malicious, or on grounds that they failed to state a claim for relief. He was ordered to
17 show cause why pauper status should not be barred, but he has filed no response of any
18 kind to the order. Accordingly, this federal civil rights action is DISMISSED without
19 prejudice to Young bringing his claims in a new paid complaint.
20 DISCUSSION
21 Young, a state prisoner and frequent litigant in federal court, has filed this federal
22 civil rights action under 42 U.S.C. § 1983 along with a motion to proceed in forma
23 pauperis (IFP) under 28 U.S.C. § 1915. He was ordered to show cause why the action
24 should not be dismissed under 28 U.S.C. § 1915(g), which provides that a prisoner may
25 not bring a civil action IFP “if the prisoner has, on 3 or more prior occasions, while
26 incarcerated or detained in any facility, brought an action or appeal in a court of the United
27 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a
1 serious physical injury.” (Dkt. No. 10 at 1.) The Order identified six prior federal court
2 actions (“strikes”) that appeared to count under section 1915(g) and allowed plaintiff an
3 opportunity to respond, as required by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005).
4 The Order also informed Young he could avoid dismissal by paying the filing fee by the
5 deadline.
6 The strikes identified were:
7
1. Young v. State of California (California 1999), No. 2:99-cv-01039-DFL-
8 JFM (E.D. Cal. Oct. 7, 1999) (dismissing complaint for failing to state a
claim);
9
2. Young v. United States Gov’t. (U.S. Government), No. 2:02-cv-02940-RT-E
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(C.D. Cal. Oct. 15, 2002) (adopting findings and recommendations to
11 dismiss complaint for failure to state a claim and as frivolous);
12
3. Young v. State of California (California 2002), No. 2:02-cv-09138-FMC-E
13 (C.D. Cal. Feb. 7, 2003) (adopting findings and recommendations to dismiss
complaint as barred by Heck v. Humphrey (Heck), 512 U.S. 477 (1994) (an
14 individual bringing a claim under 42 U.S.C. § 1983 must base the pursuit of
damages for an unconstitutional conviction on the reversal or invalidation of
15
the conviction and two defendants were entitled to sovereign immunity on
16 the face of the complaint));
17
4. Young v. Sumptner (Sumptner) No. 2:05-cv-03653-CBM-E (C.D. Cal March
18 30, 2006) (adopting findings and recommendations to dismiss action for
failure to file an amended complaint after dismissal with leave to amend;
19 initial dismissal for failure to state a claim);
20
5. Young v. Cate (Cate), No. 5:11-cv-02825-EJD (May 30, 2012) (dismissing
21 action for failure to file a second amended complaint after two dismissals
with leave to amend; first two dismissals concluded complaint was prolix);
22
23 and
24 6. Young v. Voong (Voong), Case No. 1:17-cv-01671-LJO-SAB (E.D. Cal.)
(dismissing complaint for failure to state a claim).
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26
Each of these dismissals counts as a strike. As to Young’s California 1999, U.S
27
Government, and Voong actions, it is well-established that a dismissal for failure to state a
1 claim constitutes a strike. See 28 U.S.C. § 1915(g) (an action “dismissed on the grounds
2 that it . . . fails to state a claim upon which relief may be granted” is a strike); Moore v.
3 Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011) (same).
4 As to Young’s California 2002 action, the Ninth Circuit has concluded that a
5 dismissal counts as a strike where an affirmative defense, such as a Heck bar, is apparent
6 on the face of the complaint. See Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d
7 1048, 1055-57 (9th Cir. 2016); see also Irby v. Gilbert, No. 16-35373, 2016 WL
8 11618605, at *1 (9th Cir. Nov. 14, 2016) (acknowledging this holding).
9 As to Young’s Sumptner action, where a plaintiff fails to file an amended complaint
10 after an initial complaint was dismissed with leave to amend, this counts as a strike. See
11 Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (where complaint is dismissed
12 with leave to amend, and prisoner fails to amend, the dismissal counts as a strike).
13 Finally, as to Young’s Cate action, the failure to correct a prolix complaint after
14 having been given leave to do so constitutes a strike, as does the failure to amend a
15 complaint after having been given leave to do so. See Knapp v. Hogan, 738 F.3d 1106,
16 1108-09 (9th Cir. 2013) (“We hold that repeated and knowing violations of Federal Rule
17 of Civil Procedure 8(a)’s ‘short and plain statement’ requirement are strikes as ‘fail[ures]
18 to state a claim,’ . . . when the opportunity to correct the pleadings has been afforded and
19 there has been no modification within a reasonable time.”) (citation omitted).
20 Also, the Ninth Circuit has recognized on two occasions that plaintiff has accrued at
21 least three strikes. See Dkt. No. 4, Young v. Godwin, Appeal No. 20-16446 (9th Cir. Sept.
22 17, 2020); Dkt. No. 6, Young v. Williams, Appeal No. 19-55513 (9th Cir. Oct. 25, 2019).
23 Young has not filed any response to the Order to Show Cause. Young therefore has
24 not shown any reason that the restrictions of section 1915(g) should not be imposed. He
25 has failed to (i) pay the filing fee; (ii) show that any of the strikes do not qualify under
26 section 1915(g); (iii) show that he qualifies for the imminent danger exception; or (iv)
27 otherwise show cause why this action should not be dismissed.
1 Young’s IFP application is DENIED. (Dkt. No. 2.) This federal civil rights action
2 || will be dismissed.
3 CONCLUSION
4 This federal civil rights action is DISMISSED without prejudice to Young bringing
5 || his claims in a new paid complaint. His IFP motion is DENIED. (Dkt. No. 2.) The Clerk
6 || shall terminate all pending motions, enter judgment in favor of defendants, and close the
7 || file.
8 IT IS SO ORDERED.
9 || Dated: April 15, 2022 M.Qe
10
LIAM H. ORRICK
11 United States District Judge
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