United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO PROCEED IN FORMA
W. Christel United States Magistrate Judge
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).
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.
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.
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).
Strikes Under 28 U.S.C. 1915(g)
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.
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).
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
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.