Johnson v. Davis

Background

Paul David Johnson, a California state prisoner proceeding without a lawyer, filed a civil-rights complaint seeking damages under 42 U.S.C. § 1983. He alleged that he was denied a visit from his daughter on Father’s Day in retaliation for refusing to go through an x-ray security machine. He also alleged that various defendants withheld information from him in retaliation for an inmate grievance about the denied visit. The complaint asserted First Amendment and Fourteenth Amendment theories, improper training, and intentional infliction of emotional distress, and named 70 defendants.

Johnson also asked to proceed without paying the filing fee. The court considered whether the Prison Litigation Reform Act’s “three-strikes” rule barred that request. Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying the fee if, on three or more earlier occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an immediate danger of serious physical injury.

The court’s analysis

The court stated that its review of Johnson’s earlier dismissal orders showed at least three potentially qualifying strikes. To avoid reidentifying Johnson through the captions of those earlier proceedings, the court’s prior cases are summarized here as related earlier proceedings: No. 08-CV-1962-RRC in the Eastern District of California, dismissed for failure to state a claim; No. 11-CV-0164-CKD in the Eastern District of California, dismissed for failure to state a claim and ultimately dismissed after Johnson did not file an amended complaint; and No. 14-CV-4958-JST in the Northern District of California, dismissed because the complaint was time-barred on its face. The court said each dismissal counted as a strike under Ninth Circuit precedent.

The court also concluded that the alleged conduct did not place Johnson in imminent danger of serious physical injury. It explained that the danger must have a sufficient connection to the claims in the complaint. In the court’s view, the alleged denial of the Father’s Day visit and withholding of information did not involve such a danger.

Order

The court did not yet deny the fee request or dismiss the action. Instead, it ordered Johnson to show cause in writing within 30 days why his request to proceed without paying the filing fee should not be denied and why the action should not be dismissed under § 1915(g). The court stated that Johnson could avoid dismissal by paying the full $400 filing fee. It further ordered that failure to respond on time or pay the full fee would result in dismissal without further notice. The court said it would continue reviewing Johnson’s future requests to proceed without paying filing fees under § 1915(g) while he remained incarcerated.