Barth v. Serintero

Background

The court previously dismissed Shawn Damon Barth’s original complaint under 42 U.S.C. § 1983, allowed him to amend, and granted his request to proceed in forma pauperis (IFP), meaning without paying the filing fee at the outset. After Barth filed an amended complaint, the court determined that his litigation history might prevent him from receiving IFP status under 28 U.S.C. § 1915(g).

Legal standard

Section 1915(g) bars a prisoner from proceeding without paying the filing fee after three or more earlier federal lawsuits or appeals brought while incarcerated or detained were dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner was under imminent danger of serious physical injury. The court explained that the bar depends on the prisoner’s prior filing history, not on the merits of the current lawsuit. Under Ninth Circuit law, the prisoner must receive notice of the possible bar and an opportunity to show why it should not apply, while bearing the ultimate burden of persuasion.

Prior dismissals identified by the court

The court identified at least three prior prisoner actions or appeals by Barth:

- In an earlier proceeding in the Central District of California, No. 2:16-cv-01469-DMG-RAO, the complaint was dismissed because Barth failed to state a claim. The court also noted that one claim was barred by the rule concerning claims that would undermine an existing conviction or sentence, and that two defendants had sovereign immunity. - In another Central District of California proceeding, No. 2:18-cv-04763-DMG-RAO, the complaint was initially dismissed with leave to amend for failure to state a claim, with additional defects involving the same rule and sovereign immunity. The case was ultimately dismissed after Barth failed to correct the defects. - In an earlier Northern District of California proceeding, No. 3:18-cv-01242-WHO, the amended complaint was dismissed for failure to state a claim and because its allegations were excessively lengthy and unfocused. The case was ultimately dismissed after Barth failed to correct the pleading defects.

The court concluded that all three dismissals counted as qualifying dismissals under section 1915(g). It relied on Ninth Circuit decisions explaining that dismissals based on obvious defects such as a failure to state a claim, an obvious bar under the rule concerning convictions or sentences, immunity, or repeated failure to provide a short and plain statement may count as strikes under the Prison Litigation Reform Act.

Order

The court stated that Barth did not appear to be under imminent danger of serious physical injury. It therefore ordered him to show cause—that is, explain—by July 6, 2021, why his IFP status should not be denied and why the current case should not be dismissed under section 1915(g). Alternatively, Barth could avoid dismissal by paying the full $400 filing fee by that date. The court did not itself dismiss the action in this order. It stated that failing to respond or pay would result in dismissal without prejudice to bringing the claims in a new paid complaint.

Judge William H. Orrick issued the order.