Balzarini v. Newsom

Background

Michael Balzarini, identified in the opinion as a state prisoner, filed this federal civil-rights action under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. The court initially granted that request. It later ordered him to explain why the case should not be dismissed under 28 U.S.C. § 1915(g), a rule that generally bars a prisoner from proceeding without paying the filing fee after at least three earlier federal actions or appeals were dismissed as frivolous, malicious, or for failing to state a claim, unless the prisoner faced imminent danger of serious physical injury.

The court’s earlier order identified six possible qualifying cases or appeals. The opinion states that the Ninth Circuit had determined that the first three listed cases were strikes. The court also informed Balzarini that he could avoid dismissal by paying the filing fee by the deadline.

Arguments and analysis

Balzarini argued that cases filed outside the district where this case was pending could not count as strikes. The court rejected that argument, stating that the statute contains no such geographic restriction. He also argued generally that none of the earlier matters qualified and specifically asserted that dismissals for lack of jurisdiction or failure to prosecute could not count. The court found those arguments unpersuasive, noting that the identified matters were dismissed as frivolous, malicious, or for failure to state a claim, and that the Ninth Circuit had declared the first three to be strikes.

The court also considered the exception for a prisoner facing imminent danger of serious physical injury when the complaint is filed. Balzarini described general prison conditions, including ventilation, food, clothing, medical care, and restrictions on visits and marriage. The court found that he generally did not explain how those conditions affected him personally and directly. It also found that his allegations about temperature sensitivity, possible health effects, and inadequate treatment for Hepatitis C did not show an imminent danger at the time of filing. The detailed incident he described had occurred in 2018.

Disposition

The court concluded that Balzarini had not paid the filing fee, had not shown that the strikes were inapplicable, had not established the imminent-danger exception, and had not otherwise shown cause why the case should remain open. The court dismissed the civil-rights action without prejudice to his raising the claims in a new paid complaint.

The court revoked Balzarini’s status allowing him to proceed without paying the fee. It denied his motion for appointment of counsel, his motion opposing the order to show cause, and his motion for release. The clerk was directed to terminate all pending motions, enter judgment in favor of the defendants, and close the file.