Brownlee v. Vernon

Background

Terrance Brownlee, identified as a state prisoner and frequent federal litigant, filed this civil-rights action under 42 U.S.C. § 1983 and applied to proceed without paying the filing fee. He also moved for appointment of counsel.

The court applied 28 U.S.C. § 1915(g), which generally prevents a prisoner from proceeding without paying the filing fee after three or more earlier federal actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim. The court identified three earlier Brownlee actions as qualifying strikes. The opinion also noted that the Ninth Circuit had previously treated those cases as strikes, revoked Brownlee’s unpaid-fee status in an appeal, and ordered him to pay the full fee. When he did not pay, the Ninth Circuit dismissed that appeal for failure to prosecute.

Imminent-danger exception

Section 1915(g) contains an exception when a prisoner faces imminent danger of serious physical injury. The court explained that the relevant danger must exist when the complaint is filed and must involve an ongoing danger. Brownlee asserted in conclusory terms that this exception applied, but the court found that he had not adequately shown imminent danger.

Brownlee also did not pay the filing fee, show that any of the three strikes should not count, or otherwise show why the action should not be dismissed.

Ruling

The court denied Brownlee’s application to proceed without paying the filing fee and denied his motion for appointment of counsel. It dismissed the civil-rights action without prejudice to Brownlee bringing his claims in a new paid complaint. The court also stated that all pending motions were denied, directed the Clerk to terminate the pending motions, enter judgment in favor of the defendants, and close the file. Judge William Orrick entered the order.