Barth v. Broomfield

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA — 6 — 7 SHAWN DAMON BARTH, Case No. 20-cv-08621-WHO (PR) Plaintiff, — 8 — ORDER OF DISMISSAL v. — 9 — 10 RON BROOMFIELD, et al., Defendants. — 11 — — 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 and was granted an extension of time 18 to show cause, but he has not filed any response to the Order. Accordingly, this federal 19 civil rights action is DISMISSED without prejudice to Barth bringing his claims in a new 20 paid complaint. 21 BACKGROUND 22 Barth, a state prisoner and frequent litigant in federal court, filed this federal civil 23 rights action under 42 U.S.C. § 1983 along with a motion to proceed in forma pauperis 24 (IFP) under 28 U.S.C. § 1915 . He was ordered to show cause why the action should not be 25 dismissed under 28 U.S.C. § 1915 (g), which provides that a prisoner may not bring a civil 26 action IFP “if the prisoner has, on 3 or more prior occasions, while incarcerated or 27 detained in any facility, brought an action or appeal in a court of the United States that was 1 relief may be granted, unless the prisoner is under imminent danger of serious physical 2 injury.” (Dkt. No. 5 at 1.) The Order identified three prior federal court actions (“strikes”) 3 that appeared to count under section 1915(g) and allowed plaintiff an opportunity to 4 respond, as required by Andrews v. King, 398 F.3d 1113 (9th Cir. 2005). The Order also 5 informed Barth he could avoid dismissal by paying the filing fee by the deadline. 6 The strikes identified were: 7 (1) Barth v. Beard (Beard), No. 2:16-cv-01469-DMG-RAO (C.D. Cal. Feb. 26, 2019) 8 (complaint dismissed by a district judge upon the recommendation of a magistrate 9 judge1 because plaintiff failed to state a claim, and additionally, one of his four 10 claims was barred on the face of the complaint by Heck v. Humphrey (Heck), 512 11 U.S. 477 (1994) (an individual bringing a claim under 42 U.S.C. § 1983 must base 12 the pursuit of damages for an unconstitutional conviction on the reversal or 13 invalidation of the conviction and two defendants were entitled to sovereign 14 immunity on the face of the complaint), and two defendants were entitled to 15 sovereign immunity on the face of the complaint); 16 (2) Barth v. Kernan (Kernan), No. 2:18-cv-04763-DMG-RAO (C.D. Cal. Sept. 10, 17 2018) (complaint dismissed with leave to amend because plaintiff failed to state a 18 claim, one of his four claims was additionally Heck-barred on the face of the 19 complaint, and defendants were entitled to sovereign immunity on the face of the 20 complaint; ultimately dismissed because plaintiff failed to cure any defect upon 21 amendment); and 22 (3) Barth v. Muniz (Muniz), No. 3:18-cv-01242-WHO (N.D. Cal. May 31, 2019) 23 (amended complaint dismissed for failure to state a claim and because allegations 24 were prolix; suit ultimately dismissed after plaintiff failed to cure any defect upon — 25 — — 26 — 1 That a magistrate judge, rather than a district judge, issued the order is of no moment. See Hoffmann v. Pulido, 928 F.3d 1147, 1150-51 (9th Cir. 2019) (holding that a dismissal — 27 — without prejudice by a magistrate judge, issued before the defendant filed a consent to 1 amendment).” 2 DISCUSSION 3 Barth did not file any response to the Order to Show Cause. He has failed to □□□ pay 4 || the filing fee; (41) show that any of the strikes do not qualify under section 1915(g); (iii) 5 || show that he qualifies for the imminent danger exception; or (iv) otherwise show cause 6 || why this action should not be dismissed. He has not shown any reason that the restrictions 7 || of section 1915(g) should not be imposed. 8 Barth’s IFP application is DENIED. (Dkt. Nos. 3 and 4.) This federal civil rights 9 || action will be dismissed. 10 CONCLUSION 11 This federal civil rights action is DISMISSED without prejudice to Barth bringing 2 his claims in a new paid complaint. His IFP motion is DENIED. (Dkt. Nos. 3 and 4.) The 5 13 || Clerk shall terminate all pending motions, enter judgment in favor of defendants, and close 14 |] the file. 15 IT IS SO ORDERED. a 16 || Dated: October 21, 2021 , ( . MUQe Z 7 IAM H. ORRICK 18 United States District Judge — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — 2 The Court’s dismissal was upheld on appeal: “The district court did not abuse its 26 || discretion in dismissing Barth’s action without prejudice because Barth failed to comply with the district court’s orders to file an amended complaint that alleged a closely related 47 || Set of claims, despite multiple warnings to comply with federal pleading and joinder oo Barth v. Muniz, No. 3:18-cv-01242-WHO, USCA Memorandum, Dkt. No.