United States District Court, W.D. Washington, Tacoma
ORDER TO SHOW CAUSE AND FILE AMENDED
W. Christel United States Magistrate Judge
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.
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.
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.
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.).
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.
“three-strikes rule, ” contained in
[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.
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
review of court records from the District of
Oregon shows at least three of the cases
Plaintiff filed while incarcerated ...