Barth v. Vega

Background

Shawn Damon Barth, identified as a state prisoner and frequent federal litigant, filed this civil-rights action under 42 U.S.C. § 1983 and requested permission to proceed without paying the filing fee upfront. That request is commonly called pauper status or a fee waiver. The order also directed the Clerk to correct the spelling of the defendant’s last name to Vega.

Legal framework

Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without paying 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. The exception is when the prisoner is under imminent danger of serious physical injury. The Ninth Circuit requires the prisoner to have an opportunity to respond and persuade the court that the three-dismissal bar does not apply. If the bar applies, the prisoner may still pursue the claims by paying the full filing fee at the beginning of the case.

Earlier dismissals

The court identified at least three earlier prisoner actions or appeals by Barth that it determined qualified as strikes under the Prison Litigation Reform Act:

- In one earlier proceeding, the complaint was dismissed for failure to state a claim. The court also noted that one claim was barred because success would have undermined an existing conviction, and that two defendants were protected by sovereign immunity. - In a second earlier proceeding, the complaint was first dismissed with leave to amend for failure to state a claim, with additional defects involving the existing-conviction bar and sovereign immunity. It was later dismissed after Barth failed to correct the defects. - In a third earlier proceeding, an amended complaint was dismissed for failure to state a claim and because it was excessively lengthy and unfocused. The action was ultimately dismissed after Barth failed to cure the defects despite being given an opportunity to amend.

The court stated that all three dismissals counted as strikes. It explained that a dismissal based on an obvious existing-conviction bar or immunity defense can count as a strike when the defect is clear from the complaint. It also stated that repeatedly failing to provide a short and plain statement after receiving an opportunity to correct the pleading can qualify as a failure to state a claim and therefore count as a strike.

Order

Because the court found at least three qualifying strikes and stated that Barth did not appear to be under imminent danger of serious physical injury, it ordered him to show cause why fee-waiver status should not be denied and why the present action should not be dismissed under § 1915(g). Barth’s response was due by July 19, 2021 and had to be labeled “RESPONSE TO ORDER TO SHOW CAUSE.”

The order gave Barth an alternative: he could avoid dismissal by paying the full $402 filing fee by that date. The court stated that failure to file a response or pay the fee by the deadline would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint. This order itself was a show-cause order; it did not yet deny fee-waiver status or dismiss the action.