Balzarini v. Lizarraga

Background

Michael Balzarini, a state prisoner, filed a federal civil-rights action under 42 U.S.C. § 1983 and applied to proceed in forma pauperis, meaning without prepaying the filing fee. The court identified at least three earlier federal actions that appeared to qualify as “strikes” under 28 U.S.C. § 1915(g). The opinion lists four prior actions and states that the Ninth Circuit had determined that the first three were strikes.

The court issued an order requiring Balzarini to show why the three-strikes restriction should not apply. That order also told him that he could avoid dismissal by paying the filing fee by the deadline.

Court’s Analysis

Balzarini did not respond to the show-cause order. The court found that he had not paid the filing fee, shown that any of the prior dismissals did not qualify as strikes, shown that he was under imminent danger of serious physical injury, or otherwise explained why the case should not be dismissed.

Section 1915(g) generally bars a prisoner from proceeding without prepaying the filing fee after three qualifying prior actions or appeals, unless the prisoner faces imminent danger of serious physical injury. Because Balzarini did not establish an exception or otherwise respond to the court’s order, the court denied his application to proceed without paying the fee.

Disposition

The court dismissed the civil-rights action without prejudice to Balzarini bringing his claims in a new paid complaint. It denied the application to proceed without prepaying the filing fee, entered judgment in favor of the defendant, terminated the pending motions, and closed the file. Judge Richard Seeborg signed the order.