United States District Court, D. Arizona
ORDER
G.
Murray Enow, Chief United States District Judge.
On June
25, 2018, Plaintiff Matthew Levi Faison, [1] who is confined
in the Blackwater River Correctional Facility in Milton,
Florida, filed a pro se Complaint (Doc. 1), which the Clerk
of Court filed as a civil rights Complaint pursuant to 42
U.S.C. § 1983. In a July 16, 2018 Order (Doc. 5), the
Court dismissed the complaint as deficient and gave Plaintiff
30 days to file an amended complaint and to either pay the
filing and administrative fees or file a complete Application
to Proceed In Forma Pauperis.
On
August 10, 2018, Plaintiff filed a First Amended Complaint
(Doc. 6) and an Application to Proceed In Forma Pauperis
(Doc. 8). Pursuant to 28 U.S.C. § 1915(g), the Court
will deny the Application to Proceed and will dismiss the
First Amended Complaint and this action without prejudice.
I.
Dismissal Pursuant to 28 U.S.C. § 1915(g)
The
Prison Litigation Reform Act of 1995 (PLRA), enacted on April
26, 1996, provides that a prisoner may not bring a civil
action or appeal a civil judgment in forma pauperis
(“IFP”) if:
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
28 U.S.C. § 1915(g). This is “commonly known as
the ‘three strikes' provision.” Andrews
v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir. 2005).
A.
Three Strikes
“[I]n
determining a § 1915(g) ‘strike,' the
reviewing court looks to the dismissing court's action
and the reasons underlying it.” Knapp v.
Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). “In
some instances, the district court docket records may be
sufficient to show that a prior dismissal satisfies at least
one of the criteria under § 1915(g) and therefore counts
as a strike.” Andrews, 398 F.3d at 1120.
“[T]he style of the dismissal or the procedural posture
is immaterial. Instead, the central question is whether the
dismissal ‘rang the PLRA bells of frivolous, malicious,
or failure to state a claim.'” Harris v.
Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (quoting
El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir.
2016)). See Knapp, 738 F.3d at 1110 (dismissal of
appeal as “‘not taken in good faith,
'… has been held to be equivalent to a finding of
frivolity” and counts as strike); O'Neal v.
Price, 531 F.3d 1146, 1154 (9th Cir. 2008) (section
1915(g) does “not distinguish between dismissals with
and without prejudice”).
As an
initial matter, the Court takes judicial notice of the
following actions and appeals in which Plaintiff has been
previously barred under § 1915(g) from proceeding in
federal court:
Matthew v. BOFA Suntrust (Matthew Levi Faison), No.
2:14-cv-04523-UA-PLA (C.D. Cal. Jun. 20, 2014) (dismissed
pursuant to § 1915(g)).
Faison v. Brown (Matthew Leo Faison), No.
3:03-cv-00053-RWN (M.D. Fla. Jan. 28, 2003) (dismissed
pursuant to § 1915(g)).
Faison v. Jergen (Matteo Leon Faison), No.
3:03-cv-00135-HES (M.D. Fla. Mar. 7, 2003) (dismissed
pursuant to § 1915(g)).
Faison v. Office of Executive Clemency Board
(Matthew Faison, Jr.), No. 3:12-cv-00319-BJD-JBT (M.D.
Fla. Mar. 29, 2012) (dismissed pursuant to § 1915(g)).
Faison v. Guerra (Maestro Matthew Faison), No.
3:04-cv-00027-RV-MD, 2004 WL 758283 (N.D. Fla. Mar. 15, 2004)
(adopting report and recommendation to dismiss pursuant to
§ 1915(g)).
Faison v. Guerra (Matthew Levi Faison), No.
3:04-cv-00069-RV-MD (N.D. Fla. Apr. 26, 2004) (adopting
report and recommendation to dismiss under § 1915(g)).
Faison v. U.S. Att'y Gen. (Matthew Faison, Jr.),
No. 5:09-cv-00404-RS-AK (N.D. Fla. Mar. 9, 2010) (adopting
report and recommendation to dismiss action under §
1915(g)).
Faison v. Guerra (Matthew Leo Faison, aka Matthew
Leo Jackson Faison, aka Leo Jackson Faison), No.
3:18-cv-000158-MCR-EMT, 2018 WL 1157561, at *1 (N.D. Fla.
Feb. 16, 2018) (report and recommendation to dismiss action
under § 1915(g)) adopted by Faison Guerra, No.
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