Unreported / Non-Citable
Background
Plaintiff Daronta T. Lewis, a self-represented California state prisoner, filed a civil rights complaint under 42 U.S.C. § 1983 and moved for leave to proceed in forma pauperis (IFP). The court reviewed Lewis’s litigation history and identified six prior federal actions dismissed while he was incarcerated. The court determined that each prior dismissal qualified as a “strike” under the Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915(g), which bars prisoners from proceeding IFP if they have accumulated three or more strikes unless they are under imminent danger of serious physical injury. The prior cases included dismissals for filing a duplicative action (Lewis v. Ugwueze), failure to state a cognizable claim and failure to amend (Lewis v. Allio), failure to name a proper defendant and failure to amend (Lewis v. Hoagland), and three cases dismissed for prolix, vague, and conclusory pleadings violating Rule 8(a) after leave to amend was granted (Lewis v. Brown, Lewis v. Antonen, Lewis v. Neilson).
The Court’s Holding
The court concluded that Lewis has accumulated at least three strikes under § 1915(g) and therefore ordered him to show cause in writing within 28 days why his IFP motion should not be denied and the action dismissed, or in the alternative, to pay the full $405 filing fee within the same period. The court relied on Ninth Circuit precedent holding that dismissals for duplicative filings, failure to state a claim, failure to name a proper defendant, and repeated Rule 8(a) violations after leave to amend all count as strikes. The court also noted that magistrate judge recommendations adopted by district judges, and dismissals without prejudice by magistrate judges before defendant consent, qualify as strikes. The court did not dismiss the case outright but required Lewis to respond or pay the fee before any initial review of the complaint would occur.
Key Takeaways
- A prisoner with three or more prior dismissals counted as strikes under 28 U.S.C. § 1915(g) cannot proceed IFP unless they allege imminent danger of serious physical injury.
- Dismissals for duplicative filings, failure to state a cognizable claim, failure to name a proper defendant, and repeated failure to cure Rule 8(a) deficiencies after leave to amend all constitute strikes.
- A dismissal by a magistrate judge that is later adopted by a district judge, or a dismissal without prejudice by a magistrate judge before defendant consent, counts as a strike under Ninth Circuit law.
- The court must provide notice and an opportunity to be heard before dismissing under § 1915(g), which this order satisfies by issuing an order to show cause.
- The prisoner bears the ultimate burden of persuasion to show that § 1915(g) does not bar IFP status.
Why It Matters
This order illustrates the application of the PLRA’s three-strikes rule in the Ninth Circuit, confirming that a wide range of dismissal grounds—including procedural failures like duplicative filings and Rule 8(a) violations—count as strikes when leave to amend was granted and not utilized. It reinforces that magistrate judge dismissals adopted by district judges are valid strikes, and that courts may raise the strike bar sua sponte with proper notice. The decision underscores the gatekeeping function of § 1915(g) in filtering prisoner litigation at the threshold, while preserving the prisoner’s right to proceed upon payment of the full filing fee. This is a show-cause order, not a dismissal and not a final denial of pauper status. Lewis had twenty-eight days either to explain why section 1915(g) did not apply or to pay the full $405 filing fee. Failure to respond or pay could lead to dismissal for failure to prosecute, leaving the three-strikes question open pending his response.