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Jones v. Hanks

United States District Court, D. Arizona

July 26, 2019

Elvis Wayne Jones, Plaintiff,
v.
George C. Hanks, Jr., et al., Defendants.

          ORDER

          DOUGLAS L. RAYES UNITED STATES DISTRICT JUDGE.

         Plaintiff Elvis Wayne Jones, who is confined in the Texas Department of Criminal Justice-Allan B. Polunsky Unit in Livingston, Texas, has filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 (Doc. 1), an Application to Proceed In Forma Pauperis (Doc. 9), and four miscellaneous filings, docketed as a Notice (Doc. 6) and Motions (Docs. 7, 8, 11). The Court will deny the Application to Proceed, dismiss the Complaint and this action, and deny the remaining filings as moot.

         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”).

         The public electronic case information system for the United States Courts reveals that to date, Plaintiff has filed more than 50 civil actions in federal court, exclusive of, and in addition to, numerous appeals and habeas proceedings.[1] Among those civil actions, three or more have been dismissed as frivolous, malicious, or for failure to state a claim and count as “strikes” under § 1915(g). Such actions include, but are not limited to:

Jones v. Texas Corrections Corporate of America, No. 3:14-cv-00379 (S.D. Tex. Feb. 8, 2016) (dismissed as frivolous, for failure to state a claim, and barred by § 1915(g)).
Jones v. City of Austin, No. 3:09-cv-00077-JWS (D. Alaska May 12, 2009) (dismissed as frivolous and for failure to state a claim).
Jones v. Beaumont Judicial Court, No. 1:98-cv-01472-RAS-ESH (E.D. Tex. Feb. 24, 1999) (adopted R&R and dismissed as frivolous).
Jones v. West, No. 1:97-cv-00685-HC-ESH (E.D. Tex. Feb. 17, 1999) (adopted R&R and “dismissed as frivolous and for failure to state a claim upon which relief may be granted”).
Jones v. Beaumont Judicial Court, No. 1:98-cv-01473-TH (E.D. Tex. Feb. 25, 1998) (dismissed as ...

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