(PC) Kelly v. Elit, No. 1:2018cv00019 - Document 9 (E.D. Cal. 2018)

Court Description: ORDER DECLINING to Adopt FINDINGS AND RECOMMENDATIONS 7 , signed by District Judge Dale A. Drozd on 4/20/2018: This mater is referred back to the assigned magistrate judge for further proceedings consistent with this order. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JAMES CARL KELLY, 12 No. 1:18-cv-00019-DAD-SAB Plaintiff, 13 v. 14 WAYNE ELIT, 15 ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS (Doc. Nos. 2, 7) Defendant. 16 17 Plaintiff James Carl Kelly is a state prisoner proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On January 3, 2018, plaintiff filed a motion to proceed in forma pauperis in this action. 21 (Doc. No. 2.) On January 10, 2018, the assigned magistrate judge issued findings and 22 recommendations, recommending that plaintiff’s motion be denied and that plaintiff be required 23 to pay the $400.00 filing fee in full to proceed with this action. (Doc. No. 7.) The findings and 24 recommendations were served on plaintiff and contained notice that any objections thereto were 25 to be filed within fourteen days after service. (Id. at 4.) To date, plaintiff has filed no objections 26 to the findings and recommendations, and the time in which to do so has now passed. 27 28 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), the undersigned has conducted a de novo review of the case. Having carefully reviewed the entire file, the court finds 1 1 the findings and recommendations are not supported by the record and by proper analysis, and are 2 therefore not adopted. 3 The findings and recommendations identified three prior cases filed by plaintiff that the 4 assigned magistrate judge found to constitute strike dismissals under 28 U.S.C. § 1915(g). See 5 Kelly v. Gyorkey, No. 2:11-cv-02142-WBS-EFB (E.D. Cal. Aug. 6, 2012); Kelly v. Sogge, No. 6 2:08-cv-01823-CTB, 2010 WL 1794126 (E.D. Cal. May 5, 2010); Kelly v. Youngblood, No. 2:04- 7 cv-02462-WBS-DAD (E.D. Cal. Dec. 29, 2004). As to all of these cases, the findings and 8 recommendations concluded that each had been dismissed for failure to state a claim. See 9 Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1051 (9th Cir. 2016) (noting that “[a] 10 prisoner can incur a ‘strike’ for bringing an action ‘that was dismissed on the grounds that it is 11 frivolous, malicious, or fails to state a claim upon which relief may be granted.’”) (quoting 28 12 U.S.C. § 1915(g)). The undersigned believes that the conclusion set forth in the findings and 13 recommendations as to the grounds upon which the dismissals were based is not fully supported 14 by the records in the cited cases. This is because court records reflect that both Sogge and 15 Youngblood were dismissed by the court due to plaintiff’s failure to exhaust his administrative 16 remedies, and in neither case did the court make any alternative holding that the complaint was 17 inadequate in any other respect, nor was there a finding that the complaint in either case was 18 frivolous or malicious. See Sogge, 2010 WL 1794126, at *4 (“For the reasons set out above, the 19 Court GRANTS Defendants Bakewell, Edmondson, and Dunn’s motion to dismiss Kelly’s 20 complaint for failure to exhaust administrative remedies.”); Youngblood, No. 2:04-cv-02462- 21 WBS-DAD, at 3 (recommending “that this action be dismissed without prejudice for failure to 22 exhaust administrative remedies before bringing the action”). 23 The question now before the court is, therefore, whether and under what circumstances a 24 dismissal for failure to exhaust administrative remedies constitutes a “strike” dismissal for 25 purposes of S§1915(g). Under binding Ninth Circuit law as it existed at the time Sogge and 26 Youngblood were decided, the failure to exhaust administrative remedies under the PLRA was 27 “treated as a matter in abatement, which is subject to an unenumerated Rule 12(b) motion rather 28 than a motion for summary judgment.” Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003) 2 1 (citations omitted). Under this framework, courts were at that time permitted to “look beyond the 2 pleadings and decide disputed issues of fact” in deciding a motion to dismiss for failure to 3 exhaust administrative remedies. Id. at 1119–20. Subsequently, the Supreme Court considered 4 the function of exhaustion under the PLRA and concluded that “failure to exhaust is an 5 affirmative defense under the PLRA, and that inmates are not required to specially plead or 6 demonstrate exhaustion in their complaints.” Jones v. Block, 549 U.S. 199, 921 (2007). 7 Recognizing the tension between the decisions in Wyatt and Jones, the Ninth Circuit revisited its 8 holding in Wyatt and expressly overruled it in Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 9 2014) (en banc). 10 In Albino the Ninth Circuit announced that “[i]n a typical PLRA case, a defendant will 11 have to present probative evidence . . . that the prisoner has failed to exhaust available 12 administrative remedies.” Id. at 1169. Because demonstrating exhaustion will normally require 13 defendant to present evidence, therefore, exhaustion generally will be decided at the summary 14 judgment stage rather than the pleading stage. See id. Nonetheless, the Ninth Circuit did not 15 foreclose the possibility that, in “rare cases where a failure to exhaust is clear from the face of the 16 complaint,” a court could still dismiss the complaint under Rule 12. Id.; see also Thompson v. 17 DEA, 492 F.3d 428, 438 (D.C. Cir. 2007) (“Even when failure to exhaust is treated as an 18 affirmative defense, it may be invoked in a Rule 12(b)(6) motion if the complaint somehow 19 reveals the exhaustion defense on its face.”). 20 The Ninth Circuit has since considered the interaction between the exhaustion rules 21 outlined in Albino and the “three strikes” rule under 28 U.S.C. § 1915, specifically addressing the 22 circumstances in which a dismissal under Rule 12(b) for failure to exhaust could count as a strike 23 for the purposes of seeking in forma pauperis status in a later case. See El-Shaddai v. Zamora, 24 833 F.3d 1036, 1043–44 (9th Cir. 2016). Whether a dismissal for failure to exhaust counts as a 25 strike turns on whether “the district court considered documents outside the four corners of the 26 complaint”—that is, whether the court was confronted with one of the “rare cases” identified in 27 Albino “where a failure to exhaust is clear from the face of the complaint.” Id. at 1044 (citing 28 Albino, 747 F.3d at 1169). Thus, if a case is dismissed because the failure to exhaust was clear on 3 1 the face of the complaint, and no outside evidence was considered in reaching that determination, 2 the dismissal would count as a strike. Id. On the other hand, if a court grants summary judgment 3 for failure to exhaust and in reaching that conclusion considers material outside the complaint, 4 such a dismissal would not count as a strike. Id. 5 As applied to the present case, whether plaintiff has suffered three prior strike dismissals 6 turns on whether the courts in Sogge and Youngblood considered material outside of the 7 complaint in dismissing those cases due to plaintiff’s failure to exhaust administrative remedies. 8 Turning first to Youngblood, the record indicates that neither the assigned magistrate judge nor 9 the district judge considered material outside the four corners of the complaint. As noted by the 10 assigned magistrate judge in that case, “plaintiff concedes that a grievance procedure is available 11 at his institution and admits that he did not file a grievance concerning the facts of this case.” 12 Youngblood, No. 2:04-cv-02462-WBS-DAD, at 3. The district court summarily adopted the 13 findings and recommendations in dismissing that action. Youngblood, No. 2:04-cv-02462-WBS- 14 DAD (E.D. Cal. Dec. 29, 2004). This court interprets this prior ruling as being based only on the 15 complaint itself; defendants did not file any responsive documents, and the findings and 16 recommendations did not take judicial notice of or otherwise make any reference to evidence 17 outside the complaint. Youngblood was, therefore, one of those “rare cases” identified by the 18 Ninth Circuit in Albino where dismissal for failure to exhaust would be appropriate. Accordingly, 19 the dismissal in Youngblood counts as a strike against plaintiff. 20 In Sogge, defendants moved to dismiss the complaint due to plaintiff’s failure to exhaust 21 his administrative remedies prior to filing suit. Defendants concurrently submitted a declaration 22 from the Chief of Inmate Appeals for California stating that “Kelly has not received a third level 23 decision for a complaint,” and the district court found “no evidence before the Court to refute this 24 fact.” Sogge, 2010 WL 1794126, at *3. Relying on this outside evidence, the court in Sogge 25 concluded that plaintiff had not exhausted his administrative remedies, and dismissed the case. 26 Id. at 4. Although permissible under the law as it existed at the time under Wyatt, dismissal of the 27 complaint would have been inappropriate after the decision in Albino because plaintiff’s failure to 28 exhaust was not apparent on the face of his complaint. Rather, the court proceeded to consider 4 1 outside evidence before ruling on the motion to dismiss. See Albino, 747 F.3d at 1169 (stating 2 that in the typical case, a defendant will have to “plead and prove” that the prisoner failed to 3 exhaust). More significantly for present purposes, the fact that dismissal for failure to exhaust 4 was premised on consideration of extrinsic evidence means that the dismissal in Sogge cannot 5 count as a strike dismissal against plaintiff under § 1915(g). See El-Shaddai, 833 F.3d at 1044. 6 Here, the findings and recommendations identify only three prior strike dismissals 7 suffered by plaintiff (see Doc. No. 7 at 2) and the undersigned has concluded that one of the 8 identified dispositions does not count as a strike, 28 U.S.C. § 1915(g) does not bar plaintiff from 9 proceeding in forma pauperis in this action. Therefore, the undersigned declines to adopt the 10 findings and recommendations. This matter is referred back to the assigned magistrate judge for 11 further proceedings consistent with this order. 12 IT IS SO ORDERED. 13 Dated: April 20, 2018 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5