Brownlee v. Omosale

Background

Terrance Brownlee, identified as a state prisoner and frequent federal litigant, filed a civil-rights action under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. This fee-waiver request is commonly called in forma pauperis, or IFP, status.

The court identified at least three earlier prisoner actions or appeals involving Brownlee that federal courts dismissed because they were frivolous, malicious, or failed to state a claim:

- No. 2:00-cv-02666-LKK-JFM (E.D. Cal. Aug. 7, 2001), dismissed for failure to state a claim. - No. 2:03-cv-00746-DFL-DAD (E.D. Cal. June 17, 2003), dismissed for failure to state a claim. - No. 2:07-cv-02040-KJD-PAL (E.D. Cal. Jan. 26, 2011), dismissed for failure to state a claim.

The order says the Ninth Circuit regards these three dismissals as “strikes” under 28 U.S.C. § 1915(g). It also says that, in a prior appeal, the Ninth Circuit required Brownlee to explain why the dismissals should not bar IFP status, found his response insufficient, revoked his IFP status, and ordered him to pay the full filing fee. When he did not pay, the Ninth Circuit dismissed that appeal for failure to prosecute. The prior appeal is identified as No. 18-16923 (9th Cir. Sept. 10, 2019).

Order to Show Cause

Section 1915(g) generally prevents a prisoner from bringing a civil action or appealing a civil judgment without paying the filing fee after three qualifying dismissals. The exception applies when the prisoner is under imminent danger of serious physical injury. The court explained that Brownlee had to be given notice and an opportunity to respond before his IFP status could be denied under this rule.

The court therefore issued an order to show cause, meaning an order requiring Brownlee to explain why the court should not deny his IFP request and dismiss the action under § 1915(g). The provided opinion text is partially garbled where the court explains its view of the imminent-danger exception, but the order directs Brownlee to address whether § 1915(g) bars his fee-waiver request.

Disposition

The court ordered Brownlee to file a response labeled “RESPONSE TO ORDER TO SHOW CAUSE” by September 8, 2020. Alternatively, the order stated that he could avoid dismissal by paying the full $400 filing fee by September 7, 2020. The order further stated that failure to file a proper response by September 8, or failure to pay the fee, would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint.

This order did not decide the merits of Brownlee’s civil-rights claims and did not yet dismiss the action. Judge William Orrick signed the order.