Weston v. Deputy Sheriff 2549

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4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

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7 ANDRE D. WESTON, Case No. 24-cv-04213-PCP

8 Plaintiff, ORDER TO SHOW CAUSE WHY

PAUPER STATUS SHOULD NOT BE

9 v. REVOKED

10 DEPUTY SHERIFF #2549, et al., Re: Dkt. Nos. 6, 9

Defendants.

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13 Andre D. Weston, an inmate at Santa Rita Jail in Dublin, California, filed this pro se civil

14 rights action under 42 U.S.C. § 1983. Dkt. Nos. 1, 4, 5. United States Magistrate Judge Virginia

15 DeMarchi reviewed the Complaint pursuant to 28 U.S.C. § 1915A and dismissed it with leave to

16 amend. Dkt No. 13. In a separate order, Judge DeMarchi granted Mr. Weston’s motion to proceed

17 in forma pauperis. Dkt. No. 12. Mr. Weston subsequently filed an amended complaint. Dkt. No.

18 14 (“Amended Complaint”).

19 It now has come to the Court’s attention that Mr. Weston may have had more than three

20 prior cases dismissed as “strikes” under 28 U.S.C § 1915(g). The Court therefore orders Mr.

21 Weston to show cause why his in forma pauperis status should not be revoked.

22 A. Legal Standard

23 In 1996, Congress decided that a prisoner may not bring a civil action in forma pauperis

24 under 28 U.S.C. § 1915,

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if the prisoner has, on 3 or more prior occasions, while incarcerated

26 or detained in any facility, brought an action or appeal in a court of

the United States that was dismissed on the grounds that it is

27 frivolous, malicious, or fails to state a claim upon which relief may

be granted, unless the prisoner is under imminent danger of serious

1 28 U.S.C. § 1915(g). Section 1915(g) requires that the court consider prisoner actions dismissed

2 before, as well as after, the statute’s 1996 enactment. Tierney v. Kupers, 128 F.3d 1310, 1311–12

3 (9th Cir. 1997). Relying on the statute’s command that such a prisoner may proceed “in no event,”

4 the Ninth Circuit has held that this bar is triggered by a prisoner’s history of filing frivolous

5 litigation without consideration of the merits of the current action. See El-Shaddai v. Zamora, 833

6 F.3d 1036, 1042 (9th Cir. 2016) (emphasis in original).

7 For purposes of a dismissal that may be counted under § 1915(g), the phrase “fails to state

8 a claim on which relief may be granted” parallels the language of Federal Rule of Civil Procedure

9 12(b)(6) and carries the same interpretation, the word “frivolous” refers to a case that is “‘of little

10 weight or importance: having no basis in law or fact,’” and the word “malicious” refers to a case

11 “filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 1121 (9th

12 Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as

13 strikes for § 1915(g) purposes, so the mere fact that the prisoner has filed many cases does not

14 alone warrant dismissal under § 1915(g). See Andrews, 398 F.3d at 1121. Rather, dismissal of an

15 action under § 1915(g) should only occur when, “after careful evaluation of the order dismissing

16 an [earlier] action, and other relevant information, the district court determines that the action was

17 dismissed because it was frivolous, malicious or failed to state a claim.” Andrews, 398 F.3d at

18 1121.

19 B. Strikes

20 Andrews requires that a prisoner be given notice of the potential applicability of § 1915(g),

21 by either the district court or the defendants, but also requires the prisoner to bear the ultimate

22 burden of persuasion that § 1915(g) does not bar pauper status for him. Andrews, 398 F.3d at

23 1121. Andrews implicitly allows the court to sua sponte raise the § 1915(g) problem but requires

24 the court to notify the prisoner of the earlier dismissals that might support a § 1915(g) dismissal

25 and allow the prisoner an opportunity to be heard on the matter before dismissing the action.

26 Andrews, 398 F.3d at 1120. A dismissal under § 1915(g) means that a prisoner cannot proceed

27 with his action as a pauper under § 1915, but he still may pursue his claims if he pays the full

1 Mr. Weston is now given notice that the Court believes the following dismissals may be

2 counted as strikes for purposes of § 1915(g):

3 1. Weston v. Winfield, Case No. 2:93-cv-02016-WBS-JFM (E.D. Cal. March 8, 1994)

4 (order dismissing complaint as frivolous upon a magistrate’s recommendation);

5 2. Weston v. Montaubaum, Case No. 2:94-cv-1722-DFL-JFM (E.D. Cal. March 14,

6 1995) (order dismissing complaint as frivolous);

7 3. Weston v. Department of Corrections, Case No. 2:94-cv-1739-LKK-GGH (E.D.

8 Cal. Oct. 19, 1995) (order dismissing complaint, after a chance to amend, as

9 frivolous); and

10 4. Weston v. Alameda Sheriff Dept., Case No. 3:96-cv-0449-FMS (E.D. Cal. March

11 20, 1996) (order dismissing complaint after a chance to amend).

12 The Court evaluated these cases based on the dismissal orders and docket sheets in them.

13 See Andrews, 398 F.3d at 1120 (noting that the docket records may sometimes be sufficient but

14 that the actual court files may sometimes need to be consulted). Having evaluated these cases, the

15 Court concludes that each of these dismissals likely counts as a strike. As to the Weston v.

16 Winfield and Weston v. Montaubaum actions, it is well-established that a dismissal for frivolity

17 constitutes a strike. See 28 U.S.C. § 1915(g) (an action “dismissed on the grounds that it is

18 frivolous” is a strike) As to the Weston v. Department of Corrections and Weston v. Alameda

19 Sheriff Department actions, the Ninth Circuit has concluded that a dismissal counts as a strike

20 where qualifying defects are identified, the plaintiff is given leave to amend to remedy those

21 defects, and the plaintiff fails to file an amended complaint. See Harris v. Mangum, 863 F.3d

22 1133, 1141–43 (9th Cir. 2017) (holding that the order dismissing with leave to amend “rang the

23 PLRA bells,” and that the plaintiff’s decision not to amend merely delayed the acquisition of the

24 strike).

25 C. Imminent Danger Exception

26 Despite having accrued three strikes pursuant to section 1915(g), a plaintiff may still be

27 able to proceed in forma pauperis if he can show that he is in imminent danger of serious physical

1 that he is in imminent danger of serious physical injury. The plain language of the imminent

2 danger clause indicates that “imminent danger” is to be assessed at the time of the filing of the

3 complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“Andrews II”). It is

4 sufficient if the complaint “makes a plausible allegation that the prisoner faced ‘imminent danger

5 of serious physical injury’ at the time of filing.” Id.; see, e.g., id. at 1055 (allegation that plaintiff

6 was at risk of contracting HIV or hepatitis C was sufficient to bring his complaint within the

7 imminent danger exception); cf. Medberry v. Butler, 185 F.3d 1189, 1193 (11th Cir. 1999) (no

8 ongoing danger where plaintiff had been placed in administrative segregation following physical

9 assaults and before he filed his complaint). In this circuit, “requiring a prisoner to allege[] an

10 ongoing danger ... is the most sensible way to interpret the imminency requirement.” Andrews II,

11 493 F.3d at 1056 (internal quotation marks omitted).

12 In addition, “the imminent danger exception to § 1915(g) requires a nexus between the

13 alleged imminent danger and a prisoner’s complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir.

14 2022). To qualify under the imminent danger exception, “a three-strikes prisoner must allege

15 imminent danger of serious physical injury that is both fairly traceable to unlawful conduct alleged

16 in his complaint and redressable by the court.” Id. (emphases added).

17 Here, Mr. Weston does not allege that he was in “imminent danger” at the time of filing.

18 See generally Am. Compl. Rather, Mr. Weston claims that he was subjected to an act of excessive

19 force on September 7, 2023. See Am. Compl. at 2, 5 (specifying the event occurred on that single

20 date). Mr. Weston does not claim that he was subjected to excessive force on more than one

21 occasion, much less that the excessive force was still being applied to his person when he opened

22 this action on July 3, 2024. See Dkt. Nos. 1 (letter seeking assistance from the court), 4 (clerk’s

23 notice stating that an action had been opened in an abundance of caution and advising Mr. Weston

24 to file a complaint); see also Houston v. Lack, 487 U.S. 266 (1988) (announcing the mailbox rule

25 for prisoners). Because the allegedly unconstitutional actions had occurred and concluded well

26 before the time of filing, it appears that any danger Mr. Weston faced was not “imminent” when

27 this action was filed. Mr. Weston therefore likely does not qualify for the imminent danger

D. Conclusion

In light of these dismissals, and because Mr. Weston does not appear to be under imminent

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danger of serious physical injury, he is ORDERED TO SHOW CAUSE in writing filed no later

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than August 22, 2025, why in forma pauperis status should not be revoked and this action should

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not be dismissed pursuant to 28 U.S.C. § 1915(g).

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In the alternative to showing cause why the action should not be dismissed, Mr. Weston

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may avoid dismissal by paying the filing fee by the deadline.!

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IT ISSO ORDERED.

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Dated: July 23, 2025

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il May

12 P. Casey Pitts

United States District Judge

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%6 ' For Mr. Weston’s benefit, the Court notes that this order does not reach the merits of his action.

Even if Mr. Weston pays the filing fee, his allegations still must survive the Court’s screening

97 || before they may be served. See 28 U.S.C. § 1915A(a)-(b) (requiring district courts to conduct a

pre-service review of any complaint filed by a prisoner, and to dismiss any complaint which is

28 frivolous, malicious, fails to state a claim upon which relief may be granted, or which seeks

monetary relief from an immune defendant).