Brownlee v. Vernon
- William Orrick
- 3:20-cv-04664
- U.S. District Court · Northern District of California
- 3
In Brownlee v. Vernon, Judge Orrick ordered Brownlee to explain why he should be allowed to proceed without paying the filing fee.
Terrance Brownlee, whose request to proceed without paying the filing fee was subject to the federal three-strikes rule; the case was threatened with dismissal if he did not respond or pay the full fee.
What happened
In Brownlee v. Vernon, Terrance Brownlee, a state prisoner, filed a civil-rights lawsuit and asked to proceed without paying the filing fee. The court identified three earlier prisoner cases dismissed for failure to state a claim, which may count as strikes under federal law.
The court ordered Brownlee to explain by January 18, 2021, why the three-strikes rule should not prevent him from proceeding without paying. The court also said he could avoid dismissal by paying the full $400 filing fee by that date.
Judge William Orrick did not dismiss the case in this order. He warned that failing to respond or pay the fee by the deadline would result in dismissal without prejudice, allowing Brownlee to bring his claims in a new paid complaint.
The detailed version
- Brownlee v. Vernon · No. 3:20-cv-04664
- William Orrick
- Dec. 1, 2020
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. The court issued an order requiring him to show why the federal three-strikes rule should not bar that request.
Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying the filing 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. The exception applies when the prisoner is under an imminent danger of serious physical injury. Ninth Circuit law requires notice and an opportunity for the prisoner to respond before the court denies pauper status under this rule.
Prior dismissals identified by the court
The court identified at least three earlier prisoner actions that it said were dismissed for failure to state a claim:
- No. 2:00-cv-02666-LKK-JFM, Eastern District of California, dismissed August 7, 2001. - No. 2:03-cv-00746-DFL-DAD, Eastern District of California, dismissed June 17, 2003. - No. 2:07-cv-02040-KJD-PAL, Eastern District of California, dismissed January 26, 2011.
The court said the Ninth Circuit treats these three dismissals as strikes. It also described an earlier Ninth Circuit appeal, No. 18-16923, in which the appellate court found Brownlee's response to a similar order insufficient, revoked his pauper 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.
Order
The court ordered Brownlee to file a response by January 18, 2021, explaining why section 1915(g) should not bar him from proceeding without paying the filing fee. The response had to be labeled “RESPONSE TO ORDER TO SHOW CAUSE.” The court stated that Brownlee could instead avoid dismissal by paying the full $400 filing fee by the same deadline.
The court did not dismiss the present action in this order. It warned that failure to respond or failure to pay the full filing fee by January 18, 2021, would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.