Harris v. Vang

Background

Joshua Harris, who is incarcerated, brought this action alleging that defendants violated his constitutional rights during a stop and search of his person. The court had previously required him to pay an initial partial filing fee, warned him about problems with his original complaint, and received an amended complaint that did not adequately address those warnings. The court had issued a report and recommendation recommending dismissal for failure to state a claim.

While the period for objecting to that recommendation was still open, Harris filed a document described as a proposed second amended complaint. He asked that it be read together with his earlier complaints.

Motion to amend

Because Harris had already amended once, Federal Rule of Civil Procedure 15 required him to obtain the court’s permission before filing another amended complaint. The court treated his filing as a motion to amend because pleadings filed without a lawyer are read liberally.

The court denied the motion to amend as futile. It explained that the proposed complaint could not be accepted together with the earlier pleadings because an amended complaint generally replaces the earlier complaint, and the district’s local rule requires an amended pleading to be complete and not incorporate earlier pleadings by reference. The court also found that Harris’s proposed complaint was not signed, as required for an unrepresented party under Rule 11.

The court nevertheless gave Harris a final opportunity to correct these problems. By August 20, 2024, he could file a motion to amend with a proposed second amended complaint that was signed and contained all allegations in one standalone document. The order stated that, if he timely met those requirements and the case had not otherwise been dismissed, the court would withdraw the prior report and recommendation, although it could issue another recommendation for dismissal after reviewing the new pleading.

Application to proceed without paying the full filing fee

Harris also applied to proceed without paying the full filing fee. The court applied the prisoner-filing provisions of 28 U.S.C. § 1915 and found that Harris had more than three prior qualifying dismissals, known as “strikes.” The order identified four such dismissals, including dismissals for frivolousness, duplicative claims, and failure to state a claim.

Under the statute’s “three strikes” rule, a prisoner with at least three qualifying strikes generally cannot proceed without paying the filing fee unless he shows that he was facing an immediate danger of serious physical injury when he filed the case. The court found that Harris’s filings did not provide specific facts showing such danger. It therefore denied his application to proceed without paying the full fee.

Order and effect

The court ordered the clerk to docket Harris’s proposed amended complaint as a motion to amend. It denied that motion as futile and denied his application to proceed without paying the full filing fee. Harris was required to pay the remaining $398.50 by August 20, 2024. If he failed to do so, the court would recommend dismissing the action without prejudice for failure to prosecute. The order did not itself dismiss the action.