El-Shaddai v. Muniz

Background

Adonai El-Shaddai, also identified in the caption as James Ray Wilkerson, filed a civil-rights complaint under 42 U.S.C. § 1983 seeking damages. He was a California state prisoner representing himself and asked to proceed without paying the filing fee, a request commonly called an application to proceed in forma pauperis.

Three-dismissal rule

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner has had three or more earlier federal actions or appeals dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner faced imminent danger of serious physical injury. The court explained that the prisoner must receive notice and an opportunity to show why the rule does not apply.

The court reviewed dismissal orders from three earlier prisoner cases involving the plaintiff and concluded that they may count under this rule. The court also stated that the plaintiff did not appear to be under imminent danger of serious physical injury.

Order

Judge Yvonne Gonzalez Rogers ordered the plaintiff to show cause by the deadline stated in the order why his request to proceed without paying the filing fee should not be denied and why this action should not be dismissed under 28 U.S.C. § 1915(g). The order stated that he could avoid dismissal by paying the full $400 filing fee. It further stated that failing to respond on time or failing to pay the fee would result in dismissal without further notice. The order itself did not enter that dismissal or finally deny the fee-waiver request.