Howze v. Frisk
- Richard Seeborg
- 3:23-cv-00125
- U.S. District Court · Northern District of California
- 4
Howze v. Frisk: Judge Seeborg ordered Johnny L. Howze to explain why he may proceed without paying the filing fee.
Johnny L. Howze was required either to show why the filing-fee bar did not apply or to pay the $402 filing fee by October 2, 2023. The order stated that failing to do either would lead to dismissal without prejudice to filing a new paid complaint.
What happened
In Howze v. Frisk, Johnny L. Howze, a state prisoner representing himself, asked to bring a civil-rights case without paying the filing fee. The court said he has at least three earlier cases or appeals that may count against that request.
Howze said he faced imminent physical danger because the prison did not accommodate his need for catheters. The court found that his claimed danger was not connected to the events described in his complaint, which occurred years before he filed this case.
Judge Richard Seeborg ordered Howze to explain by October 2, 2023, why he should be allowed to proceed without paying. If he did not adequately respond or pay the $402 filing fee by then, the action would be dismissed without prejudice to filing a new paid complaint.
The detailed version
- Howze v. Frisk · No. 3:23-cv-00125
- Richard Seeborg
- Aug. 23, 2023
Background
Johnny L. Howze filed a civil-rights complaint under 42 U.S.C. § 1983 and asked to proceed without paying the filing fee. The court described him as a state prisoner and frequent federal litigant. His claims concerned high-volume television sound during periods in 2017–2018 and 2019, and a lack of catheter supplies from October 9, 2019, to November 1, 2019.
Three-strikes rule
Under 28 U.S.C. § 1915(g), a prisoner who has had three or more federal actions or appeals dismissed as frivolous, malicious, or for failing to state a claim generally may not proceed without paying the filing fee, unless the prisoner was under imminent danger of serious physical injury. The court identified four earlier Howze actions or appeals that it said qualified as strikes. The court also explained that Howze had to receive notice and an opportunity to respond before the court denied his request based on that rule.
Imminent-danger exception
Howze argued that his need to use catheters was a disability and that the prison's failure to provide accommodations, including a single-person cell and other measures, placed him in imminent physical danger when he filed the complaint. The court applied a requirement that the alleged danger must be connected to the unlawful conduct in the complaint and that a favorable ruling must be able to remedy that danger.
The court found no such connection. It reasoned that the events described in the complaint occurred between 2017 and 2019, while the action was filed in 2023, so those past events could not have placed Howze in imminent danger in 2023. It also said that a favorable result would compensate him for past injuries rather than remedy a current injury.
Order
The court ordered Howze to show cause by October 2, 2023, why his request to proceed without paying the filing fee should not be denied and why the action should not be dismissed under § 1915(g). Alternatively, he could avoid dismissal by paying the full $402 filing fee by that deadline. The court stated that failure to submit an appropriate response or pay the fee would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint. The Clerk was directed to terminate all pending motions. Judge Richard Seeborg signed the order. This opinion is an order to show cause; it does not itself state that the action was dismissed.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.