Lewis v. Contra Costa County

Background

The court had previously dismissed Lewis’s federal civil-rights action under 42 U.S.C. § 1983 after reviewing it and granted him pauper status, meaning permission to proceed without paying the filing fee in advance. On August 19, 2020, the court referred the case to a federal project that tries to place qualifying litigants with volunteer lawyers and stayed the proceedings. The project could not find a volunteer lawyer, so the court lifted the stay. Lewis was allowed to continue representing himself.

Possible filing-fee bar

The court raised a question under 28 U.S.C. § 1915(g), part of the Prison Litigation Reform Act. That provision generally prevents a prisoner from proceeding without paying the filing fee after three or more earlier federal lawsuits or appeals were dismissed as frivolous, malicious, or for failing to state a legally sufficient claim, unless the prisoner faced an imminent danger of serious physical injury.

The court explained that Ninth Circuit law requires notice and an opportunity for the prisoner to respond before the court applies this bar. The prisoner bears the ultimate burden of showing that the bar does not apply.

The court identified six earlier prisoner actions or appeals involving Lewis and concluded that each counted as a “strike” under the statute:

- In No. 1:20-cv-00575-DAD-SKO (E.D. Cal. Oct. 5, 2020), the complaint was dismissed as duplicative. - In No. 2:18-cv-00196-JAM-CKD (E.D. Cal. Oct. 3, 2018), the complaint failed to identify a legally recognized claim, and the action was later dismissed after Lewis did not file an amended complaint. - In No. 2:11-cv-01763-GGH (E.D. Cal. Nov. 18, 2011), the complaint failed to identify a defendant personally involved in the alleged wrongdoing, and the action was later dismissed after Lewis did not file an amended complaint. - In No. 2:09-cv-00195-FCD-DAD (E.D. Cal. Oct. 15, 2009), the amended complaint was vague, conclusory, overly detailed, and did not provide the required short and plain statement; the action was later dismissed after Lewis did not file a second amended complaint. - In No. 2:08-cv-01764-WBS-KJM (E.D. Cal. Nov. 12, 2009), the amended complaint had similar pleading defects, and the action was later dismissed after Lewis did not file a second amended complaint. - In No. 2:06-cv-01532-FCD-CMK (E.D. Cal. Mar. 27, 2007), the complaint had similar pleading defects, and the action was later dismissed after Lewis did not file an amended complaint.

The court also stated that Lewis did not appear to be under imminent danger of serious physical injury.

Order and effect

The court ordered Lewis to show cause—meaning explain—by July 6, 2021 why pauper status should not be denied and the present suit should not be dismissed under § 1915(g). Alternatively, he could avoid dismissal by paying the full $400 filing fee by that date.

The order did not itself finally dismiss the present suit. It stated that failing to respond or pay by the deadline would result in dismissal without prejudice to bringing the claims in a new paid complaint. If Lewis showed cause or paid the fee, he would be allowed to file an amended complaint addressing the deficiencies identified in the earlier dismissal order. The court denied all pending motions as moot and directed the clerk to terminate them.