Opinion
2:20-cv-01455-KJD-NJK
03-08-2021
BRICK P. SHALAKO HOUSTON, Plaintiff, v. R ZAVALA, et al., Defendants.
REPORT AND RECOMMENDATION
NANCY J. KOPPE UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Plaintiff's response to the Court's order to show cause in writing why the Court should not recommend that his in forma pauperis status be revoked. Docket No. 20. For the reasons discussed more fully below, the Court RECOMMENDS that Plaintiff's in forma pauperis status be revoked and that his complaint be dismissed without prejudice unless he pays the full filing fee.
I. BACKGROUND
Plaintiff is a detainee proceeding pro se in this action pursuant to 28 U.S.C. § 1915. On August 5, 2020, Plaintiff filed an application to proceed in forma pauperis and submitted a complaint. Docket Nos. 1, 1-1; see also Docket Nos. 7, 12. On November 9, 2020, the Court granted Plaintiff's application to proceed in forma pauperis. Docket No. 13. On January 13, 2021, the Court received Plaintiff's initial partial payment of his filing fee. Docket No. 18.
On February 1, 2021, United States District Judge Gloria M. Navarro found in a distinct case that Plaintiff is a prisoner who, while incarcerated or detained in any facility, has brought at least three actions that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. See Houston v. Downey, et al., 2021 U.S. Dist. LEXIS 18546, at *1 & n.1 (D. Nev. Feb. 1, 2021). Accordingly, on February 2, 2021, the Court ordered Plaintiff to show cause in writing why the Court should not recommend that his in forma pauperis status be revoked. Docket No. 19. The Court cautioned Plaintiff that, pursuant to 28 U.S.C. § 1915, he could continue to proceed in forma pauperis in this case only if he demonstrated that he is in imminent danger of serious physical injury. See Id. at 1-2. On March 4, 2021, Plaintiff filed the instant response to the Court's order to show cause. Docket No. 20.
II. LEGAL STANDARD
Pursuant to the Prison Litigation Reform Act, “once a prisoner has had three actions dismissed as frivolous or malicious, or for failure to state a claim upon which relief may be granted, that prisoner is no longer permitted to file an action in forma pauperis unless the prisoner is in imminent danger of serious physical injury.” Hoffmann v. Pulido, 928 F.3d 1147, 1148-49 (9th Cir. 2019) (citing 28 U.S.C. § 1915(g)). To satisfy the provision requiring imminent danger of serious physical injury, the prisoner's complaint must contain allegations of an imminent danger, see Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007), and those allegations must be related to the causes of action in the complaint. See Asemani v. Islamic Republic of Iran, 2019 WL 4935595, at *1 (D. Haw. Oct. 7, 2019) (collecting cases). The latter requirement means that the prisoner must show that (1) the imminent danger is fairly traceable to the unlawful conduct asserted in the complaint; and (2) a favorable outcome would redress that injury. Pettus v. Moregenthau, 554 F.3d 293, 298-99 (2d Cir. 2009).
III. ANALYSIS
Plaintiff submits that the Court should not revoke his in forma pauperis status because Defendants, not the Court, bear the burden of challenging his in forma pauperis status. Docket No. 20 at 1, 3. Plaintiff appears to further submit that the Court may revoke his in forma pauperis status only upon screening his complaint. Id. at 1. In addition, Plaintiff submits that good cause exists not to revoke his in forma pauperis status because he cannot afford to pay the filing fee. Id. at 3. Plaintiff submits that the Court should permit him to maintain this case under a payment plan or grant him eighteen months to pay the filing fee. Id.
As a litigant proceeding without an attorney, the Court construes Plaintiff's filing liberally. Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013).
The Court finds that Plaintiff has failed to establish that the Court should not recommend that his in forma pauperis status be revoked. Plaintiff fails to demonstrate that his complaint contains allegations of an imminent danger and that those allegations are related to the causes of action in his complaint. See Cervantes, 493 F.3d at 1055; see also Asemani, 2019 WL 4935595, at *1. Further, while a defendant typically bears the burden of challenging a prisoner's in forma pauperis status, see Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005), the Court may nonetheless reconsider its prior order granting Plaintiffs in forma pauperis application and revoke his in forma pauperis status sua sponte. See LSR 1-5 (“The court may, either on the motion of a party or sua sponte, after affording an opportunity to be heard, revoke leave to proceed in forma pauperis if the party to whom leave was granted . . . has willfully misstated information in the application to proceed in forma pauperis or affidavit”); see also Owens v. Matthews, 2017 WL 603183, at *2 (CD. Cal. Jan. 6, 2017) (citing King, 398 F.3d at 1119) (revoking prisoner's in forma pauperis status sua sponte); United States v. Martin, 226 F.3d 1042, 1049 (9th Cir. 2000) (finding courts have authority to reconsider non-final orders sua sponte). Plaintiff has failed to establish that he may continue to proceed in forma pauperis in this case and, therefore, must pay the full filing fee. See 28 U.S.C. § 1914; see also Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995) (citing King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987)) (“Although we construe pleadings liberally in their favor, pro se litigants are bound by the rules of procedure”).
IV. CONCLUSION
Accordingly, IT IS RECOMMENDED that Plaintiffs in forma pauperis status be revoked and that his complaint be dismissed without prejudice unless he pays the full filing fee.
NOTICE
This report and recommendation is submitted to the United States District Judge assigned to this case pursuant to 28 U.S.C. § 636(b)(1). A party who objects to this report and recommendation must file a written objection supported by points and authorities within fourteen days of being served with this report and recommendation. Local Rule IB 3-2(a). Failure to file a timely objection may waive the right to appeal the district court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).