Weston v. Deputy Sheriff 2549

Background

Andre D. Weston, an inmate at Santa Rita Jail, filed this pro se civil-rights action under 42 U.S.C. § 1983. A magistrate judge previously reviewed his complaint under the prisoner-screening statute and dismissed it with permission to amend. In a separate order, the magistrate judge allowed Weston to proceed in forma pauperis, meaning without paying the filing fee at the outset. Weston then filed an amended complaint.

Possible prior strikes

The court stated that it had learned Weston may have had more than three prior cases dismissed as “strikes” under 28 U.S.C. § 1915(g). That provision generally prevents a prisoner from proceeding in forma pauperis after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner was in imminent danger of serious physical injury.

The court identified four prior dismissals that it believed likely counted as strikes: Weston v. Winfield, Case No. 2:93-cv-02016-WBS-JFM; Weston v. Montaubaum, Case No. 2:94-cv-1722-DFL-JFM; Weston v. Department of Corrections, Case No. 2:94-cv-1739-LKK-GGH; and Weston v. Alameda Sheriff Dept., Case No. 3:96-cv-0449-FMS. The court said it evaluated the dismissal orders and docket sheets. It concluded that the first two dismissals likely counted because they were for frivolity. It concluded that the latter two likely counted because qualifying defects had been identified, Weston had been allowed to amend, and the complaints were then dismissed.

Imminent-danger exception

The court considered whether the imminent-danger exception could allow Weston to proceed without paying the fee despite three strikes. It explained that the danger must exist when the complaint is filed and must be connected to the unlawful conduct alleged in the complaint.

The court found that Weston alleged a single excessive-force incident on September 7, 2023. It noted that he did not allege that excessive force continued when he opened this action on July 3, 2024. Because the alleged conduct had ended well before filing, the court stated that Weston likely did not qualify for the exception.

Order

The court ordered Weston to show cause in writing by August 22, 2025, why his in forma pauperis status should not be revoked and why the action should not be dismissed under § 1915(g). Alternatively, Weston could avoid dismissal by paying the filing fee by that deadline. The court expressly stated that this order did not reach the merits of his action. Even if he paid the fee, his allegations would still have to pass the required screening before the defendants could be served.