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McDonald v. Lauren

United States District Court, W.D. Washington, Tacoma

January 24, 2017

STEVEN DARBY MCDONALD, Plaintiff,
v.
KENNETH LAUREN et al., Defendants.

          ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS

          David W. Christel United States Magistrate Judge

         The District Court has referred this action, filed pursuant to 42 U.S.C. § 1983, to United States Magistrate Judge David W. Christel. The Court has reviewed Plaintiff Steven Darby McDonald's Complaint and concludes Plaintiff has incurred three “strikes” under 28 U.S.C. § 1915(g). However, Plaintiff has shown he is under imminent danger of serious physical injury and therefore the three-strikes rule does not apply. Accordingly, the Court grants Plaintiff's Motion to Proceed In Forma Pauperis (IFP).

         BACKGROUND

         Plaintiff, who is currently incarcerated at Clallam Bay Corrections Center (“CBCC”) filed an Application to Proceed In Forma Pauperis (“Motion”), Dkt. 1., and a Proposed Civil Rights Complaint, Dkt. 1-1, in this civil rights action on January 8, 2017. Dkt.1. Plaintiff alleges Defendants have denied him treatment for his liver disease in violation of his First and Eighth Amendment rights. Dkts. 1, 1-1.

         DISCUSSION

         The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, governs in forma paupers (“IFP”) proceedings. Under § 1915(a), a district court may waive the filing fee for civil complaints by granting IFP status to individuals unable to afford the fee. Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007). “To address concerns that prisoners proceeding IFP were burdening the federal courts with frivolous lawsuits, the PLRA altered the IFP provisions for prisoners in an effort to discourage such suits.” Id. (citing Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3rd Cir. 2001) (en banc)). Indigent prisoners still receive IFP status if they meet the requirements, but § 1915(b) states prisoners proceeding IFP must pay the filing fee when funds become available in their prison accounts. 28 U.S.C. §1915(b); Cervantes, 493 F.3d at 1051. “Additionally, prisoners who have repeatedly brought unsuccessful suits may entirely be barred from IFP status under the three-strikes rule.” Cervantes, 493 F.3d at 1051-52. The “three-strikes rule, ” contained in §1915(g), states:

[i]n no event shall a prisoner bring a civil action under this section if the prisoner has, on 3 or more prior occasions, while incarcerated 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 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

         The Court notes the PLRA's strike provision does not distinguish between dismissals with prejudice, dismissals without prejudice, actions dismissed on the merits, or actions dismissed pursuant to the PLRA's screening provisions. O'Neal v. Price, 531 F.3d 1146, 1154-55 (9th Cir. 2008). When an application is rejected pursuant to the screening provisions of 28 U.S.C. § 1915 and the case is dismissed, the dismissal counts as a strike. Id. at 1155; see El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (“to constitute a strike, the denial of IFP status must be based on one of the enumerated grounds in the statute”); But see Washington v. L.A. Cty. Sheriff's Dep't, 833 F.3d 1048, 1055-58 (9th Cir. 2016) (holding that a dismissal of an action that includes a claim that both sounds in habeas and seeks injunctive relief does not constitute a strike). Further, “[d]ismissal of an action and the subsequent dismissal of the appeal as frivolous amount to two separate strikes.” Richey v. Fleenor, 2014 WL 5111588 (W.D. Wash Oct. 10, 2014). See also Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir.2002); Moran v. Sondalle, 218 F.3d 647, 651-52 (7th Cir.2000) (both noting that frivolous appeals count as a strike).

         I. Strikes Under 28 U.S.C. 1915(g)

         A review of court records from this District shows at least three of the cases Plaintiff filed while incarcerated were dismissed for failure to state a claim.

         Plaintiff filed McDonald v. Kenney, et al. (Case No. 3:13-CV-5647, W.D. Wash.) while incarcerated. During the screening process, this case was dismissed with prejudice for failure to state a claim upon which relief could be granted. As this case was dismissed for failure to state a claim, McDonald v. Kenney, et al. is Plaintiff's first strike. Plaintiff appealed the dismissal. McDonald v. Kenney, et al., Case No. 14-35068 (9th Cir.). The Court of Appeals for the Ninth Circuit denied his motion to proceed IFP because the appeal was frivolous and instructed Plaintiff to show cause why the court should not summarily affirm the district court's judgment after the filing fee was paid. Plaintiff did not pay the filing fee and the case was dismissed for failure to prosecute. As the motion to proceed IFP was denied as frivolous, Plaintiff's appeal of McDonald v. Kenney, et al. is his second strike. See Thomas v. Beutler, 2012 WL 5464631, *2 (E.D. Cal. Nov. 7, 2012) (counting a dismissal for failure to pay a filing fee a strike when the court of appeals denied the plaintiff's motion to proceed IFP because the appeal was frivolous and ordered the plaintiff to show cause why the court should not summarily affirm the district court's judgment upon payment of the filing fee).

         Plaintiff also filed McDonald v. Khurshid, et al. (Case No. 3:04-CV-5736, W.D. Wash.) while incarcerated. The case was dismissed based on Plaintiff's failure to state a claim for which relief could be granted and because Plaintiff had abused the legal process, harassed numerous parties, and engaged in vexatious behavior. Id. As this case was dismissed for failure to state a claim, McDonald v. Khurshid, et al. is Plaintiff's third strike.[1]

         While incarcerated Plaintiff brought at least three actions which were frivolous, malicious, or failed to state a claim; therefore, he is barred from proceeding IFP in this action unless he can show he is exempt from the three-strikes rule because he is under imminent danger.

         II. Imminent ...


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