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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DENNIS DALE CATCHINGS, CASE NO. CV 22-02910-DSF (AS) 12 Plaintiff,

ORDER TO PAY THE FILING FEE OR

SHOW CAUSE WHY THIS ACTION

13 v.

SHOULD NOT BE DISMISSED

PURSUANT TO 28 U.S.C. § 1915(G)

14 UNITED STATES OF AMERICA, ET.

AL.,

15 Defendants. 16 17 On April 29 2022, Dennis Dale Catchings (“Plaintiff”), a 18 California state prisoner proceeding pro se, filed a Civil Rights 19 Complaint against Congresswoman Nancy Pelosi, District Judge Otis 20 D. Wright, Magistrate Judge Pedro Castillo, and various “unknown” 21 defendants who allegedly engaged in “‘organized and influenced 22 corrupt activity’ by blatantly failing to enforce the nations civil 23 rights laws and co-conspiring to fail to conduct investigations on 24 citizen complaints filed of reported police misconduct.” (Dkt. No. 25 1 at 5).1 Plaintiff has also filed a Request to Proceed Without 26

27 1 Because Plaintiff is suing federal employees, his claims are more appropriately brought under Bivens v. Six Unknown Fed. 28 Case 2:22-cv-02910-DSF-AS Document 7 Filed 05/16/22 Page 2 of 6 Page ID #:28

1 Prepayment of Filing Fees or in forma pauperis (“IFP Request”). 2 (Dkt. No. 2).2 3 4 Plaintiff’s litigation history reflects that he is subject to 5 the provisions of 28 U.S.C. § 1915(g). Courts may raise Section 6 1915(g) sua sponte. See, e.g., Harris v. City of New York, 607 7 F.3d 18, 23 (2nd Cir. 2010) (”district courts may apply the three 8 strikes rule sua sponte”); Maxton v. Bureau of Prisons Dir., 2019 9 WL 3287832 *2 (C.D. Cal. July 18, 2019)(“Courts may raise Section 10 1915(g) sua sponte and dismiss the action after providing the 11 plaintiff with an opportunity to be heard.”). Pursuant to 12 § 1915(g), a prisoner may not “bring a civil action or appeal a 13 judgment in a civil action or proceeding” without prepayment of 14 the filing fees: 15 16 if the prisoner has, on 3 or more prior occasions, while 17 incarcerated or detained in any facility, brought an 18 Narcotics Agents, 403 U.S. 388 (1971). See Daly-Murphy v. Winston, 19 837 F.2d 348, 355 (9th Cir. 1987) (“There is no valid basis for a claim under section 1983, in that Daly-Murphy’s allegations are 20 against federal officials acting under color of federal law. 21 Section 1983 provides a remedy only for deprivation of constitutional rights by a person acting under color of law of any 22 state or territory or the District of Columbia. Thus, the only possible action is an action under the authority of Bivens.” 23 (Citation omitted)). 24 2 Plaintiff’s request failed to include a certification 25 regarding the available funds in his prison trust account. As the Ninth Circuit has observed, the Prison Litigation Reform Act, 28 26 U.S.C. § 1915, requires prisoners seeking to file civil actions regarding prison conditions and treatment to submit a certified 27 copy of their prisoner trust fund statement for the previous six months. See 28 U.S.C. § 1915(a)(2). 28

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1 action or appeal in a court of the United States that 2 was dismissed on the grounds that it is frivolous, 3 malicious, or fails to state a claim upon which relief 4 may be granted, unless the prisoner is under imminent 5 danger of serious physical injury. 6 7 28 U.S.C. § 1915(g). Such dismissal is deemed a “strike.” 8 9 The Ninth Circuit has held that the phrase “fails to state a 10 claim on which relief may be granted” as used in §1915(g), parallels 11 the language of Fed. R. Civ. P. 12(b)(6) and carries the same 12 interpretation; that the word “frivolous” refers to a case that is 13 “of little weight or importance: having no basis in law or fact”; 14 and the word “malicious” refers to a case “filed with the ‘intention 15 or desire to harm another.’” See Andrews v. King, 398 F.3d 1113, 16 1121 (9th Cir. 2005) (explaining the terms used in §1915(g)). In 17 addition, the Ninth Circuit has held that the prior denial of IFP 18 status on the basis of frivolity or failure to state a claim 19 constitutes a strike for purposes of §1915(g)). See O’Neal v. 20 Price, 531 F.3d 1146, 1153-54 (9th Cir. 2008) (also stating that a 21 dismissal without prejudice may count as a strike). Additionally, 22 appellate affirmances do not count as strikes when the appeal 23 affirms the decision of the district court, but an appeal of a 24 dismissal will count as a separate strike if the appellate court 25 “expressly states that the appeal itself was frivolous, malicious 26 or failed to state a claim.” El-Shaddai v. Zamora, 833 F.3d 1036, 27 1045-46 (9th Cir. 2016). Finally, the Supreme Court recently 28 confirmed that Section 1915(g) applies “to any dismissal for

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1 failure to state a claim, whether with prejudice or without.” Lomax 2 v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020). 3 4 Once a plaintiff has accumulated three strikes, he is 5 prohibited from pursuing any subsequent civil action without 6 prepayment of the filing fees, unless he makes a showing that he 7 was “under imminent danger of serious physical injury” based on 8 the circumstances “at the time the complaint was filed, not at some 9 earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1052- 10 53 (9th Cir. 2007); 28 U.S.C. § 1915(g). Further, “the prisoner 11 bears the ultimate burden of persuading the court that § 1915(g) 12 does not preclude IFP status.” Richey v. Dahne, 807 F.3d 1202, 13 1206 (9th Cir. 2015). 14 15 In light of the foregoing standards, the Court takes judicial 16 notice of the following prior civil actions filed by Plaintiff in 17 the United States District Court for the Central District of 18 California, that qualify as strikes for purposes of §1915(g). See 19 Fed. R. Evid. 201(b)(2), (c)(1):3 20 21 (1) Dennis Dale Catchings v. Timothy Jackman, Case No. CV 13- 22 02788-ODW (SS), Order revoking Plaintiff’s in forma pauperis 23 24

3 In addition to the cases listed below, the Court also is 25 aware of a case Plaintiff filed in the United States District Court 26 for the Eastern District of California in which a motion for order revoking in forma pauperis status under 28 U.S.C. § 1915(g) because 27 Plaintiff is a three strikes litigant is pending. (Dennis Dale Catchings v. Fletcher, et. al., Case No. CV 21-00879-DB). 28

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1 privilege pursuant to 28 U.S.C. § 1915(g) on August 13, 2013 (Dkt. 2 No. 3). 3 4 (2) Dennis D. Catchings v. City of Santa Monica, et al., Case 5 No. CV 09-08473-UA (SS), dismissed due to Heck bar on December 18, 6 2009. (Dkt. No. 2). 7 8 (3) Dennis D. Catchings v. City of Santa Monica, et. al., Case 9 No. CV 06-5721-UA (SS), Order dismissing action as Heck barred on 10 October 23, 2006. (Dkt. No. 2). 11 12 (4) Dennis D. Catchings v. City of Santa Monica, et. al., Case 13 No. CV 06-0006-UA (SS), Order dismissing action as Heck barred on 14 February 17, 2006. (Dkt. No. 2). 15 16 Accordingly, because plaintiff had already accumulated more 17 than three strikes before he initiated this action, plaintiff is 18 precluded from proceeding IFP herein unless he can show that, at 19 the time he initiated this action, he was “under imminent danger 20 of serious physical injury.” 28 U.S.C. §1915(g). The availability 21 of the “imminent danger” exception “turns on the conditions a 22 prisoner faced at the time the complaint was filed, not at some 23 earlier or later time.” See Andrews, 493 F.3d at 1053. Here, 24 Plaintiff’s Complaint does not allege that he was under any danger 25 of physical injury. The Court, however, must allow a prisoner the 26 opportunity to be heard on the matter before revoking a request to 27 proceed IFP or dismissing an action pursuant to 28 U.S.C. §1915(g). 28

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1 IT IS HEREBY ORDERED that, on or before June 16, 2022, 2 Plaintiff shall pay the full filing fees in this action, or he 3 shall show cause in writing, if there be any, why he should not be 4 denied leave to proceed IFP and the action dismissed on the ground 5 that he had suffered three or more “strikes” within the meaning of 6 28 U.S.C. § 1915(g) before initiating this action. 7 8 Plaintiff’s failure to comply with this Order will be deemed 9 by the Court as Plaintiff’s consent to the dismissal of this action. 10 11 IT IS SO ORDERED. 12 13 DATED: May 16, 2022 /s/ __________ 14 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

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