McCullom v. Ahern

Background

Kevin McCullom, identified as a California state prisoner, filed this civil-rights action without a lawyer under 42 U.S.C. § 1983 against various officers and employees of Santa Rita Jail, the Alameda County Sheriff’s Department, and San Mateo County. He requested permission to proceed in forma pauperis (IFP), meaning without prepaying the filing fee.

McCullom labeled the complaint a class action and listed other inmates as plaintiffs. The complaint sought relief related to his underlying Alameda County criminal proceedings, including an evidentiary hearing, relief concerning his conviction and guilty plea, disciplinary action against judges and attorneys, damages, and relief concerning a state-court ruling on evidence.

Court’s analysis

Under 28 U.S.C. § 1915(g), a prisoner generally cannot proceed IFP after bringing three or more earlier actions or appeals while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was under imminent danger of serious physical injury when the new case was filed.

The court found that four earlier cases involving McCullom counted as strikes under that provision: one dismissed as frivolous and malicious, one dismissed for failure to state a claim, one dismissed as duplicative and therefore potentially malicious, and one dismissed entirely as barred by the rule from Heck v. Humphrey. The court concluded that McCullom had at least three qualifying dismissals. It also found no allegations showing that he was in imminent danger when he filed this action.

The court separately denied class certification because, under the authorities it cited, a prisoner proceeding without a lawyer cannot adequately represent a class. It dismissed the other named plaintiffs without prejudice, allowing them to file separate individual lawsuits.

Order

The court ordered McCullom to file a response within 28 days showing why his IFP application should not be denied under § 1915(g), including why any of the identified earlier dismissals should not count as strikes. The order did not yet deny the IFP application. It stated that, if McCullom failed to respond, the application would be denied and the full filing fee would become immediately due. If he then failed to pay the fee, the case would be dismissed without prejudice for failure to pay the filing fee.

The classification is procedural because the order addressed eligibility to proceed without paying the filing fee and class certification rather than deciding the underlying civil-rights claims.