Barth v. Mojica

Background

Shawn Damon Barth, a state prisoner and frequent federal litigant, filed this civil-rights action under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee upfront. The court issued an order to show cause, meaning it required Barth to explain why his request for pauper status should not be denied and why the action should not be dismissed under 28 U.S.C. § 1915(g).

Three-strikes rule

Section 1915(g) generally bars a prisoner from proceeding without prepaying 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. An exception applies when the prisoner is under imminent danger of serious physical injury. The court explained that the rule focuses on the prisoner's history of filings, not the merits of the current case.

The court identified at least three earlier prisoner actions or appeals by Barth that it concluded counted as strikes under the Prison Litigation Reform Act. In the first earlier case, the complaint was dismissed for failure to state a claim, with additional defects involving an invalidation requirement and immunity. In the second, the complaint was first dismissed with leave to amend and was later dismissed because Barth did not correct the defects; the court again identified failure to state a claim, the invalidation requirement, and immunity. In the third, an amended complaint was dismissed for failure to state a claim and because it was excessively long and unclear; the case was ultimately dismissed after Barth failed to correct the pleading. The court stated that each of these three dismissals counted as a strike.

Order

The court stated that Barth did not appear to be under imminent danger of serious physical injury. It ordered him to file a response by July 19, 2021, clearly labeled “RESPONSE TO ORDER TO SHOW CAUSE,” explaining why the three-strikes rule should not apply. Alternatively, he could avoid dismissal by paying the full $402 filing fee by that date.

The court did not yet deny pauper status or dismiss the action in this order. It warned that failure to file a response or pay the full filing fee by July 19, 2021, would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint. Judge William Orrick signed the order.