Barth v. Mojica

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 SHAWN DAMON BARTH, Case No. 21-cv-02923-WHO (PR) Plaintiff, — 8 — ORDER TO SHOW CAUSE WHY v. 9 PAUPER STATUS IS NOT BARRED 10 R. MOJICA, et al., 11 Defendants. Dkt. Nos. 2 and 4 — 12 — 13 INTRODUCTION 14 Plaintiff Shawn Damon Barth is barred from bringing this action in forma pauperis 15 because he has filed at least three federal actions that were dismissed as frivolous, 16 malicious, or on grounds that they failed to state a claim for relief. He was ordered to 17 show cause why pauper status should not be barred, but he has not filed any response to 18 the order. Accordingly, this federal civil rights action is DISMISSED without prejudice to 19 Barth bringing his claims in a new paid complaint. 20 BACKGROUND 21 Barth, a state prisoner and frequent litigant in federal court, filed this federal civil 22 rights action under 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis 23 (IFP) under 28 U.S.C. § 1915 . He was ordered to show cause why the action should not be 24 dismissed under 28 U.S.C. § 1915 (g), which provides that a prisoner may not bring a civil 25 action IFP “if the prisoner has, on 3 or more prior occasions, while incarcerated or 26 detained in any facility, brought an action or appeal in a court of the United States that was 27 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 1 injury.” (Dkt. No. 5 at 1.) The Order identified three prior federal court actions (“strikes”) 2 that appeared to count under section 1915(g) and allowed plaintiff an opportunity to 3 respond, as required by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005). The Order also 4 informed Barth he could avoid dismissal by paying the filing fee by the deadline. 5 The strikes identified were: 6 (1) Barth v. Beard (Beard), No. 2:16-cv-01469-DMG-RAO (C.D. Cal. Feb. 26, 2019) 7 (complaint dismissed by a district judge upon the recommendation of a magistrate 8 judge1 because plaintiff failed to state a claim, and additionally, one of his four 9 claims was barred on the face of the complaint by Heck v. Humphrey (Heck), 512 10 U.S. 477 (1994) (an individual bringing a claim under 42 U.S.C. § 1983 must base 11 the pursuit of damages for an unconstitutional conviction on the reversal or 12 invalidation of the conviction and two defendants were entitled to sovereign 13 immunity on the face of the complaint), and two defendants were entitled to 14 sovereign immunity on the face of the complaint); 15 (2) Barth v. Kernan (Kernan), No. 2:18-cv-04763-DMG-RAO (C.D. Cal. Sept. 10, 16 2018) (complaint dismissed with leave to amend because plaintiff failed to state a 17 claim, one of his four claims was additionally Heck-barred on the face of the 18 complaint, and defendants were entitled to sovereign immunity on the face of the 19 complaint; ultimately dismissed because plaintiff failed to cure any defect upon 20 amendment); and 21 (3) Barth v. Muniz (Muniz), No. 3:18-cv-01242-WHO (N.D. Cal. May 31, 2019) 22 (amended complaint dismissed for failure to state a claim and because allegations 23 were prolix; suit ultimately dismissed after plaintiff failed to cure any defect upon 24 amendment).2 — 25 — 1 That a magistrate judge, rather than a district judge, issued the order is of no moment. See — 26 — Hoffmann v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019) (holding that a dismissal without prejudice by a magistrate judge, issued before the defendant filed a consent to — 27 — magistrate jurisdiction, is still a strike under the PLRA.) 1 DISCUSSION 2 Barth did not file any response to the Order to Show Cause. He has not shown any 3 || reason that the restrictions of section 1915(g) should not be imposed. He has failed to (i) 4 || pay the filing fee; (ii) show that any of the strikes do not qualify under section 1915(g); 5 || (ii) show that he qualifies for the imminent danger exception; or (iv) otherwise show 6 || cause why this action should not be dismissed. 7 Accordingly, Barth’s IFP application is DENIED. (Dkt. Nos. 2 and 4.) This federal 8 || civil rights action will be dismissed. 9 CONCLUSION 10 This federal civil rights action is DISMISSED without prejudice to Barth bringing 11 his claims in a new paid complaint. His IFP motion is DENIED. (Dkt. Nos. 2 and 4.) The 2 Clerk shall terminate all pending motions, enter judgment in favor of defendants, and close || the fite. IT IS SO ORDERED. 3 15 || Dated: August 4, 2021 ° \f C0 ° 16 LLIAM H. ORRICK 2 17 United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — 26 discretion in dismissing Barth’s action without prejudice because Barth failed to comply 97 || with the district court’s orders to file an amended complaint that alleged a closely related set of claims, despite multiple warnings to comply with federal pleading and joinder 28 a Barth v. Muniz, No. 3:18-cv-01242-WHO, USCA Memorandum, Dkt. No.