Johnson v. Davis

Background

Paul David Johnson, identified in the order as a California state prisoner proceeding without a lawyer, filed a civil-rights complaint under 42 U.S.C. § 1983 against five defendants, including Ron Davis. Johnson alleged that prison staff failed to arrange a conference call for a hearing in his private lawsuit in Texas. He alleged that this failure caused him to default in that lawsuit. He claimed that the conduct denied him access to the courts in violation of the First Amendment, resulted from a failure to train, and was intended to cause emotional distress.

Johnson also asked to proceed without paying the filing fee, a request commonly called an application to proceed in forma pauperis.

Three-strikes rule

The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner previously brought at least three federal cases or appeals while incarcerated that were dismissed as frivolous, malicious, or for failing to state a claim. The exception applies when the prisoner is under imminent danger of serious physical injury.

The court reviewed the dismissal orders from three of Johnson’s earlier prisoner cases and concluded that each appeared to qualify as a strike under 28 U.S.C. § 1915(g). The order describes the earlier dismissals as involving failure to state a claim, an apparent immunity defense and failure to amend, and a complaint that was time-barred on its face. The court stated that Johnson bears the ultimate burden of showing that the three-strikes rule does not bar his fee-waiver request.

Imminent-danger exception

The court also determined that Johnson did not appear to qualify for the imminent-danger exception. His current complaint concerned his inability to participate in a private lawsuit and did not allege a danger involving physical injury. The court therefore found no required connection between the alleged danger and the claims in the complaint.

Order

The court 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 this action should not be dismissed under § 1915(g). The court stated that Johnson could avoid dismissal by paying the $400 filing fee. It further ordered that failure to respond on time or pay the full fee would result in dismissal without further notice. This order required a response; it did not itself state that the action had already been dismissed.