(PC) Price v. Cunningham et al, No. 1:2008cv00425 - Document 27 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's In Forma Pauperis Status be Revoked, signed by Magistrate Judge Sheila K. Oberto on 3/10/11. Referred to Judge Ishii; Objections due within 30 days. (Verduzco, M)
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(PC) Price v. Cunningham et al Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRED PRICE, 10 Plaintiff, 11 12 CASE NO. 1:08-cv-00425-AWI-SKO FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF’S IN FORMA PAUPERIS STATUS BE REVOKED v. S.R. CUNNINGHAM, et al., 13 OBJECTIONS DUE WITHIN 30 DAYS Defendants. / 14 15 Plaintiff Fred Price (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis in this 16 civil rights action pursuant to 42 U.S.C. § 1983. On June 15, 2010, Defendants filed a motion 17 requesting revocation of Plaintiff’s in forma pauperis status and dismissal of this lawsuit. (Doc. 18 #19.) Plaintiff filed an opposition on July 1, 2010. (Doc. #25.) Defendants filed a reply on July 6, 19 2010. (Doc. #24.) Plaintiff filed a response to Defendants’ reply (hereinafter referred to as 20 Plaintiff’s surreply) on July 16, 2010. (Doc. #26.) 21 For the reasons set forth below, the Court finds that Plaintiff has, on three previous cases, 22 filed actions that have been dismissed for failing to state a claim. The Court further finds that 23 Plaintiff was not in imminent danger at the time he filed this action. Accordingly, the Court will 24 recommend that Plaintiff’s in forma pauperis status be revoked. 25 I. Background 26 Plaintiff filed the original complaint in this action on March 24, 2008. (Doc. #1.) The Court 27 screened Plaintiff’s complaint on February 21, 2010. (Doc. #11.) The Court found that Plaintiff’s 28 complaint stated cognizable claims against Defendants Cunningham and Mullins for deliberate 1 Dockets.Justia.com 1 indifference toward a serious risk to Plaintiff’s safety and use of excessive force in violation of the 2 Eighth Amendment. The Court also found that Plaintiff stated a cognizable claim against 3 Cunningham for retaliation. All other claims raised in Plaintiff’s complaint were dismissed on April 4 5, 2010. (Doc. #17.) 5 On June 15, 2010, Defendants filed a motion requesting revocation of Plaintiff’s in forma 6 pauperis status. Defendants argue that Plaintiff’s in forma pauperis status should be revoked 7 pursuant to 28 U.S.C. § 1915(g) because Plaintiff previously filed three lawsuits which were 8 dismissed for failing to state a claim. Defendants further argue that this action should be dismissed 9 because Plaintiff is not entitled to proceed in forma pauperis. 10 II. Discussion 11 A. 12 The Prison Litigation Reform Act provides: 13 Plaintiff’s Strikes 16 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding 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. 17 28 U.S.C. § 1915(g). “[I]f defendants challenge a prisoner-plaintiff’s IFP status . . . the initial 18 production burden rests with the defendants.” Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 19 2005). “Thus, when challenging a prisoner’s IFP status, the defendants must produce documentary 20 evidence that allows the district court to conclude that the plaintiff has filed at least three prior 21 actions that were dismissed because they were ‘frivolous, malicious or fail[ed] to state a claim.” Id. 22 (quoting 28 U.S.C. § 1915(g)). “Once the defendants have met this initial burden, the burden then 23 shifts to the prisoner, who must attempt to rebut the defendants’ showing by explaining why a prior 24 dismissal should not count as a strike.” Id. 14 15 25 Defendants have identified three previous lawsuits filed by Plaintiff which they contend are 26 strikes under the PLRA. Defendants contend that 1) Price v. Parks, case no. 2:02-cv-05955-UA-SH 27 (C.D. Cal., August 21, 2002); 2) Price v. Rianda, case no. 2:02-cv-07526-UA-SH (C.D. Cal., 28 October 3, 2002); and 3) Price v. Parks, case no. 2:02-cv-07724-UA-SH (C.D. Cal., October 16, 2 1 2002) count as strikes against Plaintiff. Thus, the burden of persuasion shifts to Plaintiff to show 2 that these prior dismissals do not qualify as strikes. 3 1. 4 5 6 Price v. Parks, case no. 2:02-cv-05955-UA-SH Counts as a Strike Plaintiff concedes that Price v. Parks, case no. 2:02-cv-05955-UA-SH, should count as a strike. 2. Price v. Rianda, case no. 2:02-cv-07526-UA-SH Counts as a Strike 7 Plaintiff argues that Price v. Rianda, case no. 2:02-cv-07526-UA-SH, should not count as a 8 strike. Plaintiff contends that the claims he raised in this lawsuit were all cognizable but the court 9 erred and misconstrued Plaintiff’s claims “as an attack on his 25 to life prison term.” (Petitioner’s 10 Opp’n to Defendant’s[sic] Cunningham and Mullins’ Mem. of P. & A. in Supp. of Their Request 11 to Revkoe Pl.’s In Forma Pauperis Status and to Dismiss the Case 3:7-16, ECF No. 25.) Plaintiff 12 argues that this lawsuit should not count as a strike because it was an “inappropriate denial by the 13 court.” (Opp’n 4:1-3, ECF No. 25.) 14 Plaintiff’s lawsuit appears to have been dismissed because it was barred by Heck v. 15 Humphrey, 512 U.S. 477 (1994). Where a prisoner files a Section 1983 action that would 16 necessarily imply the invalidity of the conviction or sentence, the claims are not cognizable unless 17 the prisoner can establish that the underlying sentence or conviction has been invalidated on appeal, 18 by a habeas petition, or through some similar proceeding. See Heck, 512 U.S. at 483-87 (1994); see 19 also Edwards v. Balisok, 520 U.S. 641, 648 (1997). “[A] prisoner . . . has no cause of action under 20 § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned 21 by the grant of a writ of habeas corpus.” Heck, 512 U.S. at 489. Accordingly, the Court finds that 22 dismissals under Heck count as strikes under the PLRA as dismissals for failure to state a claim. 23 Plaintiff argues that Price v. Rianda, case no. 2:02-cv-07526-UA-SH, should not count as a 24 strike because it was erroneously decided. There is some evidence that it was an improper dismissal. 25 In the attachment to the order denying leave to proceed in forma pauperis, the central district 26 reasoned that Plaintiff’s claims were barred by Heck because “plaintiff is challenging the fact of his 27 15-month SHU sentence, rather than the conditions of his confinement.” (Defs. Cunningham and 28 Mullins’ Notice of Mot. and Mot. to Revoke Pl.’s In Forma Pauperis Status and to Dismiss the Case, 3 1 Ex. D, at 2, ECF No. 19.) However, Plaintiff’s lawsuit should not be barred by Heck if it merely 2 challenged the validity of his disciplinary sanctions. See Ramirez v. Galaza, 334 F.3d 850, 856 (9th 3 Cir. 2003) (favorable termination rule from Heck does not apply to Section 1983 suits challenging 4 disciplinary hearing or administrative sanction that does not affect overall length of prisoner’s 5 confinement). Assuming Plaintiff’s 15 month SHU sentence had no effect on the fact or duration 6 of his criminal conviction, Plaintiff’s claims should not be barred by Heck. 7 Defendants argue that the PLRA does not provide Plaintiff with an opportunity to re-litigate 8 earlier dismissals in different lawsuits. Defendants provide no support for this assertion. An 9 assertion of issue preclusion may prevent Plaintiff “from relitigating an issue decided in a previous 10 action.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1050 (9th Cir. 2008). However, “[t]he burden 11 is on the party seeking to rely upon issue preclusion to prove each of the elements [required for 12 asserting issue preclusion] have been met.” Id. at 1050-51. Defendants have not attempted to assert 13 issue preclusion or attempted to show that any of the elements required for asserting issue preclusion 14 have been met. 15 However, the Court is reluctant to stray beyond the text of the PLRA and impose a 16 requirement that previous strikes withstand the scrutiny of reconsideration every time a litigant 17 requests IFP status or a defendant moves to revoke IFP status. The PLRA states that previous 18 lawsuits dismissed for failure to state a claim counts as strikes and there is no reasonable dispute that 19 Price v. Rianda, case no. 2:02-cv-07526-UA-SH, was dismissed for failure to state a claim – 20 erroneously or otherwise. Plaintiff’s only recourse was to appeal the prior court’s decision or request 21 reconsideration of the ruling. Accordingly, the Court will count Price v. Rianda, case no. 2:02-cv- 22 07526-UA-SH, as a strike. 23 3. Price v. Parks, Case No. 2:02-cv-07724-UA-SH Counts as a Strike 24 Plaintiff argues that Price v. Parks, case no. 2:02-cv-07724-UA-SH, should not count as a 25 strike because it “is not a lawsuit as the defendants claim in their motion.” (Opp’n 4:4-11, ECF No. 26 25.) Plaintiff also argues that the lawsuit should not count as a strike because it was dismissed for 27 lack of jurisdiction. Plaintiff contends that a dismissal based on lack of jurisdiction does not count 28 as a strike because it is not the same as a dismissal based on the failure to state a claim. 4 1 Defendants note that lack of jurisdiction was only one of the enumerated grounds for which 2 Price v. Parks, case no. 2:02-cv-07724-UA-SH, was dismissed. The Court order also indicates that 3 the lawsuit was dismissed because it was barred by Heck v. Humphrey. Accordingly, Plaintiff’s suit 4 should count as a strike because it was dismissed pursuant to Heck. See discussion supra Part II.A.2. 5 Plaintiff also raises several confusing arguments regarding whether appeals can count as 6 strikes. Plaintiff’s arguments are presumably related to his assertion that Price v. Parks, case no. 7 2:02-cv-07724-UA-SH, “is not a lawsuit.” It is unclear how Plaintiff’s arguments regarding appeals 8 apply to this case because none of the cases cited by Defendants are appeals. Accordingly, Plaintiff’s 9 arguments regarding appeals are unavailing. The Court will count Price v. Parks, case no. 2:02-cv- 10 07724-UA-SH, as a strike. 11 B. 12 The PLRA also includes an imminent danger exception for prisoner-litigants who do not 13 qualify for in forma pauperis status. Plaintiff argues in his surreply1 that he should qualify for the 14 imminent danger requirement if the Court finds that he has three strikes. Plaintiff states that he was 15 in imminent danger of serious physical injury when he filed his complaint, as evidenced by the fact 16 that he was transferred to a different prison on February 4, 2008. Plaintiff was placed on a sensitive 17 needs yard at the new prison for his own protection because he was known as a “snitch.” Imminent Danger Exception 18 “[T]he exception applies if the danger existed at the time the prisoner filed the complaint. 19 In other words, the availability of the exception turns on the conditions a prisoner faced at the time 20 the complaint was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 21 1053 (9th Cir. 2007) (internal citations omitted). 22 This action was filed after Plaintiff was transferred to a new prison and placed on a sensitive 23 needs yard for his safety. Plaintiff fails to demonstrate how or why he was still in imminent danger 24 on March 24, 2008, when he filed the complaint in this action and was living on a sensitive needs 25 /// 26 27 28 1 Plaintiff’s surreply is improper. By local rule, proper motion practice only consists of a motion, an opposition, and a reply. Local Rule 230. Plaintiff has not requested leave to file a surreply. However, the Court will address the arguments raised in Plaintiff’s surreply because they has no impact on the recommendations of this Court. 5 1 yard and no longer housed in the prison where Defendants work. Accordingly, the Court finds that 2 Plaintiff does not qualify for the imminent danger exception. 3 C. 4 Defendants argue that this action should be dismissed because Plaintiff does not qualify for 5 IFP status and Plaintiff failed to pay the filing fee. Defendants have failed to identify any authority 6 that supports their contention that this action must be dismissed because Plaintiff cannot proceed in 7 forma pauperis. The Court finds that dismissal would be a particularly harsh sanction because of the 8 possibility that Plaintiff’s claims would be barred by the statute of limitations. Accordingly, the 9 Court will provide Plaintiff with the opportunity to proceed in this action by tendering the remaining Leave to Pay Filing Fee 10 balance of his filing fee. 11 III. 12 Conclusion and Recommendation The Court finds that Plaintiff is not entitled to proceed in forma pauperis in this action. 13 Plaintiff has, on three previous occasions, filed actions which were dismissed for failing to state a 14 claim. Further, Plaintiff has not demonstrated that he qualifies for the imminent danger exception. 15 Based on the foregoing, it is HEREBY RECOMMENDED that: 16 1. Plaintiff’s in forma pauperis status be REVOKED; and 17 2. Plaintiff be given an opportunity to pay the remaining balance on his filing fee for 18 this action. 19 These Findings and Recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) 21 days after being served with these Findings and Recommendations, any party may file written 22 objections with the Court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 24 shall be served and filed within ten (10) days after service of the objections. The parties are advised 25 that failure to file objections within the specified time may waive the right to appeal the District 26 /// 27 /// 28 /// 6 1 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 2 3 IT IS SO ORDERED. 4 Dated: ie14hj March 10, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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