Lewis v. Livingston
- William Orrick
- 3:20-cv-07698
- U.S. District Court · Northern District of California
- 5
In Lewis v. Livingston, Judge Orrick ordered Lewis to explain why the court should not deny pauper status and dismiss his civil-rights case.
Daronta T. Lewis is directly affected: his request to proceed without paying the filing fee was placed at risk, and the case could be dismissed if he neither responded by July 6, 2021, nor paid the full filing fee. The order did not yet impose that dismissal or rule on the merits of his claims.
What happened
In Lewis v. Livingston, Daronta T. Lewis, a state prisoner, filed a civil-rights lawsuit and asked to proceed without paying the filing fee. The court identified at least three earlier cases or appeals that it said counted as dismissals under the prisoner three-strikes rule.
The court also found that the exception for prisoners facing an immediate danger of serious physical injury did not apply because the alleged search, property seizure, and emotional distress were not connected to such a danger. The court had not yet dismissed the case or denied fee-free status.
Judge Orrick ordered Lewis to explain by July 6, 2021, why his fee-free status should not be denied and the case dismissed. Lewis could instead avoid dismissal by paying the full filing fee; failing to respond or pay would result in dismissal without prejudice to filing a new paid complaint.
The detailed version
- Lewis v. Livingston · No. 3:20-cv-07698
- William Orrick
- May 5, 2021
Background
Daronta T. Lewis, identified as a state prisoner and frequent federal litigant, brought this civil-rights action under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee under 28 U.S.C. § 1915. The order concerns whether the Prison Litigation Reform Act’s three-strikes rule bars that fee-free status.
Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying the filing fee after three or more prior actions or appeals were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced an imminent danger of serious physical injury. Ninth Circuit law requires the prisoner to receive notice of the potential strikes and an opportunity to respond before the court dismisses the action on that basis.
Prior dismissals and imminent-danger exception
The court identified at least six prior prisoner actions or appeals involving Lewis that it concluded counted as strikes. The court described those matters as including a duplicative lawsuit, failures to identify cognizable claims or personally involved defendants, and repeated failures to correct vague, conclusory, or overly long pleadings after receiving permission to amend. The court stated that each dismissal counted as a strike under the Prison Litigation Reform Act.
The court rejected the imminent-danger exception at this stage. Lewis’s present complaint alleged a search, seizure of property including photographs, books of stamps, and a draft complaint, and emotional distress. Although Lewis alleged that officials were motivated by his separate lawsuits concerning physical injuries suffered in custody, the court stated that the actual wrongs alleged in this action did not constitute an imminent danger of serious physical injury and were not sufficiently connected to such a danger.
Order
The court ordered Lewis to show cause by July 6, 2021, 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 had not yet entered that denial or dismissal. Lewis could instead avoid dismissal by paying the full filing fee by the same deadline. The order stated that failure to respond or pay would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint.
Judge William H. Orrick signed the order.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.