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United States District Court 

Northern District of Californi

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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

MARVIN GLENN HOLLIS,

Plaintiff, 

v. 

NURSE RISENHOOVER, et al., 

 Defendants. 

Case No. 17-00326 BLF (PR) 

ORDER GRANTING MOTION TO 

VACATE DISMISSAL; GRANTING 

LEAVE TO PROCEED IN FORMA 

PAUPERIS

 

(Docket Nos. 8 & 36)

Plaintiff, a state prisoner, filed the instant pro se civil rights action pursuant to 42 

U.S.C. § 1983. The Honorable Judge Nandor J. Vadas1

 denied Plaintiff’s motion for leave 

to proceed In Forma Pauperis (“IFP”) after finding Plaintiff had at least three strikes 

(cases dismissed for failure to state a claim) under 28 U.S.C. § 1915(g) which barred him 

from proceeding IFP in this action. (Docket No. 11.) Plaintiff was afforded an 

opportunity to respond which was unpersuasive; Judge Nandor denied IFP status, and 

ordered Plaintiff to pay the filing fee. (Docket No. 19.) The matter was dismissed after 

Plaintiff failed to pay the filing fee in the time provided. (Docket No. 26.) The matter was 

reopened after Plaintiff filed a motion to vacate the dismissal under Williams v. King, 875 

 

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F.3d 500 (9th Cir. 2017), and then reassigned to this Court on January 17, 2018. (Docket 

Nos. 38 and 39.) Plaintiff thereafter filed objections and additional objections to Judge 

Nandor’s rulings. (Docket Nos. 43 and 47.) 

After reviewing the matter de novo, the Court finds Plaintiff should be granted IFP 

status because he meets the imminent danger exception under § 1915(g). 

DISCUSSION

A. 28 U.S.C. § 1915(g) 

 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted, and became 

effective, on April 26, 1996. It provides that a prisoner may not bring a civil action or 

appeal a judgment in a civil action or proceeding under 28 U.S.C. § 1915 (i.e., may not 

proceed in forma pauperis) “if the prisoner has, on three 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). 

 For purposes of § 1915(g), the phrase “fails to state a claim on which relief may be 

granted” parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the 

same interpretation, the word “frivolous” refers to a case that is “‘of little weight or 

importance; having no basis in law or fact,’” and the word “malicious” refers to a case 

“filed with the ‘intention or desire to harm another.’” Andrews v. King, 398 F.3d 1113, 

1121 (9th Cir. 2005) (“Andrews I”) (citation omitted). 

A court may count as strikes dismissals of district court cases as well as dismissals 

of appeals. See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999) (prisoner does not 
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get three frivolous claims and three frivolous appeals before being barred by § 1915(g)).4 

But the dismissal of an appeal may count as a strike only if based on a qualifying reason 

under § 1915(g). Consequently, an appellate decision that simply affirms the district court, 

and does not dismiss the appeal on a qualifying reason under § 1915(g), does not count as 

a separate strike. See El-Shaddai v. Wang, 833 F.3d 1036, 1045 (9th Cir. 2016); see also 

Knapp v. Hogan, 738 F. 3d 1106, 1110 (9th Cir. 2013) (dismissed appeal counts as strikes 

if appellate court relied on district court findings that appeal was not taken in good faith). 

The prisoner must be given notice of the potential disqualification under § 1915(g) -

- by either the district court or the defendants – but the prisoner bears the ultimate burden 

of persuasion that § 1915(g) does not bar pauper status for him. Id. at 1120. Andrews I

thus implicitly allows the court to sua sponte raise the § 1915(g) problem, but requires the 

court to notify the plaintiff of the earlier dismissals it considers to support a § 1915(g) 

dismissal and allow the plaintiff an opportunity to be heard on the matter before dismissing 

the action. See id. As stated above, Plaintiff was already given an opportunity to respond. 

See supra at 1. 

B. Plaintiff’s Prior “Strikes” 

 The magistrate judge identified at least three cases that qualify as strikes pursuant to 

§ 1915(g). (Docket No. 11 at 2.) Two of the strikes were cases which were explicitly 

dismissed for failure to state a claim: Hollis v. Mazon-Alec, No. 03-6842 RFC DLB (E.D. 

Cal.) (Docket Nos. 23, 24); Hollis v. Villanueus, No. 07-4538 TEH (E.D. Cal.) (Docket 

No. 11). Plaintiff asserts in his response that these two cases were each “dismissed for 

 

4 The district court “may take judicial notice of proceedings in other courts, both within 

and without the federal judiciary system, if those proceedings have a direct relation to 

matters at issue.” Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (internal 

quotation marks and citations omitted) (granting request to take judicial notice in § 1983 

action of five prior cases in which plaintiff was pro se litigant, to counter her argument that 

she deserved special treatment because of her pro se status). 
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lack of subject-matter jurisdiction which does not qualify as a strike.” (Docket No. 14 at 

3-5.) This is simply not true. In both cases, Plaintiff filed a complaint under § 1983, and 

dismissed for failure to state a claim. See Hollis v. Mazon-Alec, No. 03-6842 RFC DLB 

(E.D. Cal.) (Docket Nos. 23, 24); Hollis v. Villanueus, No. 07-4538 TEH (E.D. Cal.) 

(Docket Nos. 6, 11). Accordingly, these two cases qualify as strikes, and Plaintiff has 

failed to establish otherwise. See 28 U.S.C. § 1915(g). 

 Plaintiff appealed Hollis v. Villanueus to the Ninth Circuit. Hollis v. Villanueus, 

09-15523. The district court found the appeal was “frivolous and not taken in good faith. 

See 28 U.S.C. § 1915(a)(3).” Hollis v. Villanueus, No. 07-4538 TEH (E.D. Cal.) (Docket 

No. 18). The Ninth Circuit denied Plaintiff’s IFP application, ordered him to pay the full 

filing fee, and to show cause why the district court decision should not be summarily 

affirmed. Hollis v. Villanueus, 09-15523 (9th Cir.) (Docket No. 7). Plaintiff ultimately 

failed to pay the filing fee and the appeal was dismissed for failure to prosecute. Id., 

(Docket No. 9). Generally, a dismissal for failure to prosecute does not count as a strike. 

See Butler v. Dep’t of Justice, 492 F.3d 440, 443 (D.C. Cir. 2007) (dismissal for failure to 

prosecute made without regard to merits of claim does not constitute a strike); but see Ruff 

v. Ramirez, 2007 WL 4208286 at *5 (S.D. Cal. 2007) (dismissal for failure to prosecute by 

itself is not a strike, however such dismissal qualifies as a strike when it is based on 

plaintiff’s failure to file an amended complaint after court dismissed original complaint as 

frivolous and provided plaintiff leave to amend). Because the district court specifically 

found that Plaintiff’s appeal was frivolous, and he failed to respond to avoid the matter 

being summarily affirmed, this Court finds the appeal qualifies as a strike under § 1915(g). 

See Knapp, 738 F. 3d at 1110. 

In Hollis v. Evans, No. 07-6398 TEH (E.D. Cal.), Plaintiff filed a habeas petition, 
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but the district court found the petition was based on a civil rights claim.2 (Docket No. 4.) 

The district court dismissed the case without prejudice for Plaintiff to file a civil rights 

action and also informed him that the fee for a civil rights action would be $350. Id. This 

dismissal is not a strike under § 1915(g). However, Plaintiff appealed the dismissal to the 

Ninth Circuit. Hollis v. Evan, 08-15037 (9th Cir.). The district court found the appeal 

“frivolous and not taken in good faith. See 28 U.S.C. § 1915(a)(3).” Hollis v. Evans, No. 

07-5398 TEH (E.D. Cal.) (Docket No. 10). The appeal was dismissed for failure to 

prosecute. Hollis v. Evan, 08-15037 (9th Cir.) (Docket No. 11). 

 The Ninth Circuit has held that dismissed habeas petitions do not qualify as strikes. 

Andrews I, 398 F.3d at 1122. However, the Circuit noted: 

We recognize, however, that some habeas petitions may be little more than 

42 U.S.C. §1983 actions mislabeled as habeas petitions so as to avoid the 

penalties imposed by 28 U.S.C. § 1915(g). In such cases, the district court 

may determine that the dismissal of the habeas petition does in fact count as 

a strike for purposes of § 1915(g). 

Id. at 1123, n. 12. 

 In Hollis v. Evans, the district court found that the claims were not properly brought 

in a habeas petition and should be brought in a civil rights complaint. Rather than filing a 

civil rights action, Plaintiff appealed the matter, and the appeal was specifically found to 

be frivolous. Hollis v. Evans, 08-15037 (9th Cir.) (Docket No. 12). Therefore, this Court 

finds that although the underlying case is not a strike, the appeal counts as a strike under § 

1915(g). See Knapp, 738 F. 3d at 1110; see also Richey v. Dahne, 807 F.3d 1202, 1207 

(9th Cir. 2015) (Ninth Circuit’s dismissal of an appeal for failure to pay the filing fee after 

 

2

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grievance not being appealable to the highest level of administrative review. Hollis v. 

Evans, No. 07-6398 TEH (E.D. Cal.). 
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prisoner’s IFP application was denied upon a determination that the appeal was frivolous 

counts as a strike). 

 The Court notes that other courts found the cases discussed above to be strikes 

pursuant to § 1915(g), and denied Plaintiff’s request to proceed IFP. See Hollis v. Bal, No. 

13-2145 EFB (E.D. Cal.) (Docket No. 6); Hollis v. Downing, No. 09-3431 (E.D. Cal.) 

(Docket Nos. 61 & 69). In one of those cases, Plaintiff appealed the denial of IFP to the 

Ninth Circuit. In re Marvin Hollis, 11-80161 (9th Cir.). The Ninth Circuit dismissed the 

appeal, finding that it was so insubstantial as to not warrant further review. Id., (Docket 

No. 9). 

In his response to the magistrate judge’s order to show cause, Plaintiff submits other 

court decisions with differing opinions with respect to whether some of the cases discussed 

above count as strikes. (Docket No. 14.) But as discussed above, the Court has reviewed 

Plaintiff’s cases de novo and has come to its own determination. Because Plaintiff has 

failed to show that any of the prior dismissals discussed above should not count as a strike, 

the instant complaint is subject to dismissal pursuant to § 1915(g) unless he can show that 

he was in imminent danger of serious physical injury at the time the instant complaint was 

filed. 

C. Imminent Danger of Serious Physical Injury 

The plain language of the imminent danger clause in § 1915(g) indicates that 

“imminent danger” is to be assessed at the time of filing, not at the time of the alleged 

constitutional violations. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 

(“Andrews II”); Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc); 

Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 

715, 717 (8th Cir. 1998). The conditions that existed at some earlier or later time are not 

relevant. See Andrews II, 493 F.3d 1047 at 1053 & n.5 (post-filing transfer of prisoner out 
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of the prison at which danger allegedly existed may have made moot his request for 

injunctive relief against the alleged danger, but it does not affect the § 1915(g) analysis). 

“Imminent danger” may include an ongoing danger of serious physical injury. See 

Ashley, 147 F.3d at 717 (holding that plaintiff sufficiently alleged ongoing danger where 

he had repeatedly been housed near enemies, despite his protests, and where he filed his 

complaint very shortly after being attacked by an enemy); cf. Abdul-Akbar, 239 F.3d at 

315 n.1 (while declining to reach question of whether “imminent danger” encompasses an 

ongoing danger of serious physical injury, noting that the plaintiff’s allegations of past acts 

of physical harassment were not sufficiently specific or related to support an inference of 

an ongoing danger); Medberry, 185 F.3d at 1193 (finding no ongoing danger where 

plaintiff had been placed in administrative segregation following physical assaults by 

fellow inmates and before he filed his complaint). 

The court “should not make an overly detailed inquiry into whether the allegations 

qualify for the exception.” Andrews II, 493 F.3d at 1055. It is sufficient if the complaint 

“makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical 

injury’ at the time of filing.” Id.; see, e.g., id. at 1055 (allegation that plaintiff is at risk of 

contracting HIV or hepatitis C was sufficient to bring his complaint within the imminent 

danger exception); id. at 1057 (“prisoner who alleges that prison officials continue with a 

practice that has injured him or others similarly situated in the past will satisfy the 'ongoing 

danger' standard and meet the imminence prong of the three-strikes exception” even if 

prisoner had already contracted a contagious disease and complained of being housed near 

prisoners with contagious diseases). 

 In the complaint signed on January 4, 2017, (Compl. at 3), Plaintiff claimed that 

medical officials at Pelican Bay State Prison (“PBSP”) acted with deliberate indifferent to 

his serious medical and mental health needs when they failed to provide adequate 
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medication to treat his various maladies. (Id. at 5.) More specifically, Plaintiff alleged 

that after he arrived at PBSP on January 21, 2016, Defendants discontinued his various 

prescription medications as medically unnecessary while ignoring his complaints of pain. 

(Id. at 6.) Plaintiff claims that because of the interference with his medication, he suffers 

from extreme pain in his lower back, and chest pain and problems with his heart, which 

has resulted in “irreparable harm, injury, and possible premature death.” (Id. at 7.) 

Plaintiff also asserts in his reply to the Court’s order to show cause that denying him pain 

medication places him in imminent danger of serious physical injury. (Docket No. 14 at 

1.) Plaintiff alleges that at the time he filed this action, he was diagnosed with 

hypertension, had heart problems, was a border-line diabetic and was at serious risk of 

having a stroke or premature death or irreparable injury. (Id. at 7.) The Court finds that 

based on the foregoing, Plaintiff has made “plausible allegation[s]” that he was “under 

imminent danger of serious physical injury’ at the time of filing. Andrews II, 493 F.3d at 

1055. 

 Based on the foregoing, Plaintiff has shown that he was in imminent danger of 

serious physical injury at the time he filed the complaint or subject to an “ongoing danger.” 

Abdul-Akbar, 239 F.3d at 312. Accordingly, Plaintiff is entitled to the exception under § 

1915(g), and may proceed IFP under § 1915(g) in this action. 

CONCLUSION

 For the reasons stated above, the Court orders as follows: 

1. Plaintiff’s in forma pauperis status, (Docket No. 8), is GRANTED. The 

order denying IFP, (Docket No. 26), is VACATED. A separate order to that affect with 

instructions shall be issued. The Court shall also conduct an initial review of the complaint 

in a separate order. 
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2. Plaintiff’s motion to vacate the dismissal is GRANTED. (Docket No. 36.) 

This order terminates Docket No. 36. 

IT IS SO ORDERED. 

Dated: _____________________ ________________________ 

BETH LABSON FREEMAN 

United States District Judge 

Order Granting Motion to Vacate Dismissal; Granting IFP 

PRO-SE\BLF\CR.17\00326Hollis_vacate.dism