Sekona v. Gutierrez
- Haywood Gilliam
- 4:23-cv-06311
- U.S. District Court · Northern District of California
- 14
In Etuate Sekona v. Gutierrez, Judge Gilliam revoked Sekona’s permission to proceed without paying fees upfront, requiring full payment.
Etuate Sekona must pay the full $402 filing and administrative fee within 28 days to continue the action; Gutierrez’s requested judicial notice and stay were granted, and the existing briefing schedule was vacated.
What happened
In Etuate Sekona v. Gutierrez, Etuate Sekona, who is incarcerated and representing himself, sued Gutierrez under a federal civil-rights law. The court had previously allowed Sekona to proceed without paying the full fees at the start of the case.
Gutierrez asked the court to revoke that permission under the federal prisoner three-strikes rule. Gutierrez identified four of Sekona’s earlier cases, and Sekona argued that those cases should not count because of fee payments, prison conditions, or other circumstances. The court found that three of the earlier cases counted as strikes and that Sekona had not shown an immediate serious physical danger when he filed this case.
Judge Gilliam granted the request to revoke Sekona’s fee-waiver status. The court also accepted the submitted court records, retroactively stayed the dispositive-motion deadline, and vacated the current briefing schedule. Sekona may continue only by paying the full $402 filing and administrative fee within 28 days; otherwise, the court will dismiss the action without prejudice to refiling after payment.
The detailed version
- Sekona v. Gutierrez · No. 4:23-cv-06311
- Haywood Gilliam
- Mar. 4, 2025
Background
Etuate Sekona filed this self-represented civil-rights action under 42 U.S.C. § 1983 against Gutierrez. The complaint alleges that Gutierrez failed to send legal mail that Sekona had given him, causing Sekona’s earlier case to be dismissed. The court previously allowed Sekona to proceed in forma pauperis, meaning without paying the full filing fees at the beginning of the case.
Gutierrez moved to revoke that status under 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally prevents a prisoner from proceeding without paying the fees upfront after three or more earlier federal cases were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced imminent danger of serious physical injury when the new case was filed.
Judicial Notice and Prior Cases
Gutierrez asked the court to take judicial notice, meaning to accept as reliable public records, of dockets and orders from four earlier federal cases involving Sekona. The court granted that request.
After reviewing those records, the court found that the earlier cases referred to as Holowitz, Bradley, and Lucas counted as strikes under § 1915(g). The court explained that Holowitz was dismissed after Sekona did not file an amended complaint addressing identified pleading deficiencies; Bradley was dismissed in its entirety for failure to state a claim; and Lucas was dismissed after Sekona did not file an amended complaint despite receiving extensions of time. The court rejected Sekona’s arguments that fee payments, his prison housing, or the reasons he gave for not amending the complaints prevented those cases from counting as strikes.
Imminent-Danger Exception
The court also found that Sekona had not alleged imminent danger of serious physical injury when he filed this action. The allegations concerned legal mail and events that occurred about a year before the action began, and the operative complaint did not suggest that Sekona faced the required physical danger at filing.
Rulings
The court granted Gutierrez’s motion to revoke Sekona’s in forma pauperis status and revoked that status under § 1915(g). Sekona may proceed only if he pays the full $402 filing and administrative fee within 28 days of the order. If the fee is not paid by then, the court will dismiss the action without prejudice to Sekona’s refiling after payment.
The court also granted Gutierrez’s request to stay the January 11, 2025 dispositive-motion deadline, effective retroactively, and vacated the existing briefing schedule. The court will set a new briefing schedule after Sekona pays the filing fee in full. The order did not decide the merits of Sekona’s underlying civil-rights allegations.
Read the full 14-page opinion on CourtListener, the free public archive maintained by the Free Law Project.