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Thibodeaux v. White

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

April 5, 2019



          David W. Christel United States Magistrate Judge

         Plaintiff Louis James Thibodeaux, proceeding pro se and in forma pauperis (“IFP”), filed this civil rights complaint under 42 U.S.C. § 1983. The Court has reconsidered Plaintiff's Application to Proceed IFP and has reviewed and screened Plaintiff's Amended Complaint under 28 U.S.C. § 1915A. The Court finds Plaintiff has “three strikes” under 28 U.S.C. § 1915(g) and has failed to state a claim in the Amended Complaint. Therefore, by May 6, 2019, Plaintiff is required to show cause why the Court should not revoke Plaintiff's IFP status, show cause why this case should not be dismissed as a sanction for providing false information on the Complaint and Amended Complaint, and file an amended complaint.

         I. Background

         On February 15, 2019, Plaintiff initiated this action, filing an Application to Proceed IFP and a Complaint. See Dkt. 1. The Court granted Plaintiff leave to proceed IFP and directed Plaintiff to file an amended complaint because Plaintiff's Complaint failed to state a claim upon which relief could be granted. See Dkt. 6, 9. Plaintiff has now filed an Amended Complaint, wherein Plaintiff alleges Defendants, employees of the Washington State Department of Corrections (“DOC”), violated his rights under the Americans with Disabilities Act (“ADA”). Dkt. 10. Plaintiff also contends Defendants retaliated against him for filing grievances. See id.

         II. Discussion

         A. “Three Strikes”

         In his Complaint, Plaintiff stated he had not filed any other lawsuits in any federal court in the United States while a prisoner. Dkt. 1-1, 7. The Court, independently, found Plaintiff had not filed any previous lawsuits in the Western District of Washington. Based on the information contained in Plaintiff's Complaint and a review of cases filed in the Western District of Washington, it did not appear Plaintiff had incurred “three strikes” under 28 U.S.C. § 1915(g). The Court granted Plaintiff's Application to Proceed IFP on February 27, 2019. Dkt. 6.

         Plaintiff filed the Amended Complaint on March 8, 2019. Dkt. 10. In the Amended Complaint, Plaintiff stated he had filed one previous lawsuit in the United States District Court of Oregon. Id. at p. 1. Because of this new information, the Court conducted a nationwide search and found Plaintiff has filed at least thirteen previous lawsuits, not including 28 U.S.C. § 2254 habeas petitions, while incarcerated. Therefore, the Court will re-evaluate whether Plaintiff should be allowed to proceed IFP. See Owens v. Matthews, 2017 WL 603183, at *2 (C.D. Cal. Jan. 6, 2017), report and recommendation adopted, 2017 WL 600075 (C.D. Cal. Feb. 13, 2017) (sua sponte revoking IFP and citing cases holding IFP is privilege that can be revoked); K'napp v. Beard, 2014 WL 584404, *1 (E.D. Cal. Feb 12, 2014) (during the screening process, the court determined the plaintiff had incurred three strikes and recommended revoking the IFP status.).

         1. Legal Standard

         The Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915, governs 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 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.

         2. Plaintiff's Strikes

         A review of court records from the District of Oregon[1] shows at least three of the cases Plaintiff filed while incarcerated ...

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