East v. Wallace
Filing
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ORDER to SHOW CAUSE Regarding Three Strikes; Response Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 6/20/2011. Show Cause Response due by 7/25/2011. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST
CASE NO: 1:10-cv-02235-AWI-GBC (PC)
Plaintiff,
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v.
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ORDER TO SHOW CAUSE REGARDING
THREE STRIKES
C. WALLACE,
RESPONSE DUE WITHIN THIRTY DAYS
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Defendant.
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I.
PROCEDURAL HISTORY
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Plaintiff Ebone Leroy East, is a state prisoner proceeding pro se and in forma
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pauperis (“IFP”). On December 2, 2010, Plaintiff filed this civil rights action pursuant to 42
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U.S.C. § 1983 and motioned to proceed IFP. (ECF Nos. 1 & 2.) On December 6, 2010,
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the Court granted Plaintiff’s motion to proceed IFP. (ECF No. 4). This action proceeds on
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Plaintiff’s original Complaint, which has not yet been screened by this Court. (ECF No. 1.)
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No other parties have appeared.
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II.
THREE STRIKES
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A review of the record of actions and appeals filed by Plaintiff in the United States
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District Court reveals that Plaintiff has filed three or more actions and appeals that were
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dismissed as frivolous, malicious or for failure to state a claim upon which relief may be
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granted. Section 1915 of Title 28 of the United States Code governs proceedings in forma
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pauperis. Section 1915(g) provides that:
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[i]n no event shall a prisoner bring a civil action . . . under this section 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).1 Determining whether Plaintiff’s actions count as strikes under
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Section 1915(g) requires the Court to conduct a “careful examination of the order
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dismissing an action, and other relevant information,” to determine if, in fact, “the action
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was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v.
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King, 398 F.3d 1113, 1121 (9th Cir. 2005).
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After careful review of the dismissal orders, the Court takes judicial notice that
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Plaintiff has two prior actions dismissed as frivolous or for failure to state a cognizable
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claim under Section 1983.2
Those cases are: 1) East v. County of Riverside,
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5:10-cv-01108-UA-E (PC) (C.D. Cal.) (dismissed August 5, 2010, for failure to state a claim
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since federal court could not review state child support decision) and; 2) East v. County of
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San Bernardino, 5:10-cv-01381-UA-E (PC) (C.D. Cal.) (dismissed September 21, 2010,
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for failure to state a claim and defendants entitled to immunity).
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After careful review of the dismissal orders, the Court takes judicial notice that
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Plaintiff has four prior actions dismissed under Heck v. Humphrey, 512 U.S. 477 (1994) for
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not stating a cognizable claim under Section 1983. The Supreme Court in Heck stated its
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ruling was based on a denial of “the existence of a cause of action.” Heck, 512 U.S. at
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489. Additionally, several other courts have held that dismissals under Heck count as
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strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir.
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“This subdivision is com m only known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or
appeals, brought while the plaintiff was a prisoner, which were dism issed ‘on the ground that [they were]
frivolous, m alicious, or fail[ ] to state a claim ’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g),
a prisoner with three strikes or m ore cannot proceed [in form a pauperis].” Andrews v. King, 398 F.3d
1113, 1116 n.1(9th Cir. 2005).
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Although East v. California Departm ent of Corrections, 1:09-cv-01739-DLB, was dism issed for
failure to state a claim , the Court will not count it as a strike since it is currently pending appeal in appellate
case num bered: 11-16034.
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1996) (“A § 1983 claim which falls under the rule in Heck is legally frivolous.”); Schafer v.
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Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck, the complaint was properly
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dismissed for failure to state a claim.”).
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The Court finds that a dismissal pursuant to Heck counts as a strike under 28 U.S.C.
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§ 1915(g). Those cases are: 1) East v. Gidcumb, 5:09-cv-01105-UA-E (PC) (C.D. Cal.)
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(dismissed June 17, 2009, for failure to state a claim under Heck); 2) East v. Pace,
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5:09-cv-01810-UA-E (PC) (C.D. Cal.) (dismissed October 1, 2009, for failure to state a
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claim under Heck and because many of the defendants were immune); 3) East v. San
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Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.) (dismissed December 11, 2009,
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for failure to state a claim under Heck); 4) East v. Hoops, 5:10-cv-00949-UA-E (PC) (C.D.
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Cal.) (dismissed July 8, 2010, for failure to state a claim under Heck).
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Generally, a dismissal for failure to prosecute does not fall within the plain language
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of Section 1915(g). However, a court is to carefully evaluate the substance of the
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dismissal and where the merits of the claim have been determined to be frivolous or
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malicious, it may constitute as a strike. See Andrews v. King, 398 F.3d 1113, 1121 (9th
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Cir. 2005); see also O’Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008) (interpreting
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the term “dismissed” under Section 1915(g) to include when a trial court denies request to
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file an action without prepayment of the filing fee on the ground that complaint if frivolous
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and then subsequently terminates the complaint). Moreover, Section 1915(e)(2) requires
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appellate courts to dismiss all frivolous appeals. 28 U.S.C. 1915(e)(2); see also O’Neal v.
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Price, 531 F.3d 1146, 1153 (9th Cir. 2008); Thompson v. Drug Enforcement Admin., 492
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F.3d 428, 436 (D.C. Cir. 2007).
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The Court finds that appellate cases: 1) East v. County of Riverside, No. 10-56454
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(9th Cir. dismissed November 29, 2010); and 2) East v. Hoops, No. 10-56258 (9th Cir.
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dismissed November 5, 2010), were frivolous appeals and they count as a strikes under
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Section 1915(g). In County of Riverside, in an Order dated November 3, 2010, the
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appellate court denied Plaintiff’s motion to proceed in forma pauperis due to the appellate
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court’s finding that the appeal was frivolous. On November 29, 2010, Plaintiff’s appeal was
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dismissed for failure to prosecute.
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Order dated October 12, 2010, that the appeal was frivolous and denied Plaintiff’s motion
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to proceed in forma pauperis. Since Plaintiff failed to timely submit payment for filing fee
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for his frivolous appeal, on November 29, 2010, the appellate court dismissed the case for
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failure to prosecute.
Similarly in Hoops, the appellate court found in its
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It appears to the Court that Plaintiff has three or more strikes and became subject
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to Section 1915(g) well before Plaintiff filed this action on December 2, 2010. Therefore,
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the Court finds that Plaintiff should be precluded from proceeding in forma pauperis unless
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he is, at the time the complaint is filed, under imminent danger of serious physical injury.
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III.
CONCLUSION
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Because it appears that Plaintiff has on three or more prior occasions brought civil
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actions that have been dismissed as frivolous or for failure to state a claim, the Court
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HEREBY ORDERS:
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Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date of service
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of this Order why the abovementioned actions do not count as “strikes” under
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28 U.S.C. § 1915(g) and why Plaintiff’s IFP status should not be revoked and
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Plaintiff directed to submit the $350.00 filing fee in full.
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IT IS SO ORDERED.
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Dated:
1j0bbc
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June 20, 2011
UNITED STATES MAGISTRATE JUDGE
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