East v. Tuvera et al
Filing
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ORDER to SHOW CAUSE regarding Three Strikes signed by Magistrate Judge Gerald B. Cohn on 6/21/2011. Show Cause Response due by 7/25/2011.(Lundstrom, T)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST
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CASE NO: 1:11-cv-00932-GBC (PC)
Plaintiff,
ORDER TO SHOW CAUSE REGARDING
THREE STRIKES
v.
(Docs. 2, 4)
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L. TUVERA, et al.,
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Defendants.
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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 pauperis
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(“IFP”). On June 9, 2011, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 and
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motioned to proceed IFP. (Docs. 1, 2). On June 9, 2011, the Court granted Plaintiff’s motion to
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proceed IFP. (Doc. 4).
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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 District
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Court reveals that Plaintiff filed three or more actions and appeals that were dismissed as frivolous,
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malicious or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28
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of the United States Code governs proceedings in forma 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.
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28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions count as strikes under section 1915(g)
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requires the Court to conduct a “careful examination of the order dismissing an action, and other
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relevant information,” to determine if, in fact, “the action was dismissed because it was frivolous,
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malicious or failed to state a claim.” Andrews v. 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 Plaintiff has
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two prior actions dismissed as frivolous or for failing to stating a cognizable claim under section
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1983.2 Those cases are: 1) East v. County of Riverside, et al., 5:10-cv-01108-UA -E (PC) (C.D. Cal.)
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(dismissed August 5, 2010, for failure to state a claim since federl court could not review state child
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support decision) and; 2) East v. County of San Bernardino, et al., 5:10-cv-01381-UA -E (PC) (C.D.
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Cal.) (dismissed September 21, 2010, for failure to state a claim and defendants entitled to
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immunity).
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The Court finds that a dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) counts
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as a strike under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on
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a denial of “the existence of a cause of action.” Heck, 512 U.S. at 489. Additionally, several other
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courts have held that dismissals under Heck count as strikes under 28 U.S.C. § 1915(g). See e.g.,
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Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule in
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Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck,
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the complaint was properly dismissed for failure to state a claim.”). After careful review of the
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dismissal orders, the Court takes judicial notice that Plaintiff has four prior actions dismissed under
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Heck for not stating a cognizable claim under section 1983. Those cases are: 1) East v. Gidcumb,
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et al., 5:09-cv-01105-UA-E (PC) (C.D. Cal.) (dismissed June 17, 2009, for failure to state a claim
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under Heck); 2) East v. Pace, et al., 5:09-cv-01810-UA-E (PC) (C.D. Cal.) (dismissed October 1,
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2009, for failure to state a claim under Heck and because many of the defendants were immune); 3)
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“This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or appeals,
brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious,
or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g), a prisoner with three strikes
or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d 1113, 1116 n.1(9th Cir. 2005).
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Although East v. California Department of Corrections, et al., 1:09-cv-01739-DLB, was dismissed for
failure to state a claim, the Court will not count it as a strike since it is currently pending appeal in appellate case
numbered: 11-16034. See Adepegba v. Hammons. 103 F.3d 383, 387-88 (5th Cir. 1996).
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East v. San Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.) (dismissed December 11,
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2009, 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 of
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Section 1915(g). However, a court is to carefully evaluate the substance of the dismissal and where
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the merits of the claim have been determined to be frivolous or malicious, it may constitute as a
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strike. See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005); see also O'Neal v. Price, 531 F.3d
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1146, 1152-53 (9th Cir. 2008) (interpreting the term “dismissed” under section 1915(g) to include
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when a trial court denies request to file an action without prepayment of the filing fee on the ground
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that complaint if frivolous and then subsequently terminates the complaint). Moreover, section
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1915(e)(2) requires appellate courts to dismiss all frivolous appeals. 28 U.S.C. 1915(e)(2); see also
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O'Neal v. 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). Based on the above analysis, the Court finds that appellate cases:
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1) East v. County of Riverside, et al., No. 10-56454 (9th Cir. dismissed November 29, 2010); 2) East
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v. County of San Bernardino, et al., No. 10-56571 (9th Cir. dismissed February 10, 2011) and; 3)
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East v. Hoops, No. 10-56258 (9th Cir. dismissed November 5, 2010), were frivolous appeals and
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they count as a strikes under Section 1915(g).
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In County of Riverside, in an order dated November 3, 2010, the appellate court denied
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Plaintiff’s motion to proceed in forma pauperis due to the appellate court’s finding that the appeal
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was frivolous. On November 29, 2010, Plaintiff’s appeal was dismissed for failure to prosecute.
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Similarly in Hoops, the appellate court found in its order dated October 12, 2010, that the appeal was
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frivolous and denied Plaintiff’s motion to proceed in forma pauperis. Since Plaintiff failed to timely
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submit payment for filing fee for his frivolous appeal, on November 29, 2010, the appellate court
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dismissed the case for failure to prosecute. Once again in County of San Bernardino, the appellate
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court found in its order dated January 11, 2011, that the appeal was frivolous and consequently
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denied Plaintiff’s motion to proceed in forma pauperis. Since Plaintiff failed to timely submit
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payment for filing fee for his frivolous appeal, on February 10, 2011, the appellate court dismissed
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the case for failure to prosecute.
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It appears to the Court that Plaintiff has three or more strikes and became subject to section
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1915(g) well before Plaintiff filed this action on June 9, 2011. Therefore, the Court finds that
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Plaintiff should be precluded from proceeding in forma pauperis unless he is, at the time the
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complaint is filed, under imminent danger of serious physical injury.
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IV. Conclusion
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Because it appears that the Plaintiff has on three or more prior occasions brought civil actions
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that have been dismissed as frivolous or for failure to state a claim, the Court HEREBY ORDERS:
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Plaintiff SHALL SHOW CAUSE within thirty (30) days of the date of service of this
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order why the abovementioned actions do not count as “strikes” under 28 U.S.C. §
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1915(g) and why Plaintiff’s IFP status should not be revoked and Plaintiff directed
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to submit the full $350.00 filing fee.
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IT IS SO ORDERED.
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Dated:
0jh02o
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June 21, 2011
UNITED STATES MAGISTRATE JUDGE
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