(PC) Bontemps v. Sotak et al, No. 2:2009cv02115 - Document 92 (E.D. Cal. 2015)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/25/2015 RECOMMENDING that the 74 MOTION to Revoke Plaintiff's In Forma Pauperis Status be granted, the 9 Order granting IFP be vacated and plaintiff be required to furnish the statutory filing fee of $350. Objections due within 14 days after being served with this Findings and Recomendations. Referred to Judge Morrison C. England, Jr. (Donati, J)
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(PC) Bontemps v. Sotak et al Doc. 92 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 GREGORY C. BONTEMPS, 10 11 12 No. 2:09-cv-2115-MCE-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS SOTAK, et al., 13 Defendants. 14 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 U.S.C. § 1983. Defendants move to revoke plaintiff’s in forma pauperis status, and to declare 17 him a three-strikes litigant, and to dismiss his complaint. ECF Nos. 74, 75. For the reasons 18 stated below, it is recommended that the motion be granted. 19 20 I. Background Plaintiff alleges that defendants provided inadequate medical care during his incarceration 21 in the Sacramento County Jail. ECF No. 24. Plaintiff was granted leave to proceed in forma 22 pauperis (“IFP status”) on February 1, 2010, ECF No. 9, and after a series of amended complaints 23 and service issues, defendant Smith, joined by defendant Sotak, filed a motion to revoke that 24 status. ECF Nos. 40, 49. The motion to revoke was denied based on a finding that Smith had not 25 met his burden of producing evidence showing that plaintiff had three prior cases that fell within 26 the “three strikes” language of 28 U.S.C. § 1915(g). ECF Nos. 59, 61. Defendant Sotak now 27 returns with another motion to revoke plaintiff’s IFP status, which defendant Smith joins. ECF 28 Nos. 74, 75. 1 Dockets.Justia.com 1 II. Motion to Revoke In Forma Pauperis Status 2 Defendants contend in their new motion that since the denial of the prior motion, “there 3 have been four subsequent recommendations recommending that IFP status be revoked in 4 plaintiff’s other Eastern District cases, two of which have already been reviewed de novo by the 5 District Judge and adopted in full.” ECF No. 74-1 at 3. According to defendants, the four 6 subsequent recommendations and orders all counted as strikes, the following three previous cases 7 which this court did not count as strikes in ruling on the prior motion. Those cases are: 8 1. Bontemps v. Kramer et al., E.D. Cal. Case No. 2:06-cv-02483 (Kramer I); 9 2. Bontemps v. Kramer et al., E.D. Cal. Case No. 2:06-cv-02580 (Kramer II); and 10 3. Bontemps v. Gray et al., E.D. Cal. Case No. 2:07-cv-00710 (Gray). 11 Defendants argue that the analysis in the four Eastern District cases counting Kramer I & II and 12 Gray as strikes should be applied here. Although review of those cases reveals that the question 13 of plaintiff’s “three strikes” status is not as simple as defendants represent, the undersigned 14 concludes that defendant Sotak has made the requisite showing that these cases should qualify as 15 “strikes,” as discussed more fully below. 16 In two of the four recommendations in the other cases that defendants rely on, the district 17 judge dismissed plaintiff’s actions after determining him to be a three strikes litigant. Those 18 cases are: Bontemps v. Bayne, et al., E.D. Cal. Case No. 2:12-cv-2791 (Bayne) and Bontemps v. 19 Barnes, E.D. Cal. Case No. 2:12-cv-02250 (Barnes).1 In the other two cases, the court reached 20 the opposite conclusion. In Bontemps v. Salinas, E.D. Cal. Case No. 2:12-cv-02185 (Salinas), the 21 magistrate judge initially recommended that the motion to revoke IFP status be granted. Shortly 22 thereafter, the Ninth Circuit issued its opinion in Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013), 23 which clarified the circumstances under which a prior case may be deemed a “strike” under 24 § 1915(g). In light of Knapp, District Judge Nunley returned the case to the magistrate judge for 25 reconsideration. After analyzing the case under the reasoning of Knapp, the magistrate judge 26 ///// 27 28 1 The court takes judicial notice of the records in plaintiff’s other court actions. Fed. R. Evid. 201(b). 2 1 concluded that Kramer II could not be counted as a strike. She accordingly recommended that 2 the motion to revoke IFP status be denied, and Judge Nunley adopted that recommendation. 3 In Bontemps v. Callison, E.D. Cal. Case No. 2:13-cv-0360 (Callison), the same magistrate 4 judge also recommended, pre-Knapp, that plaintiff’s IFP status be revoked. District Judge 5 Mueller declined to adopt the recommendation, concluding that the dismissals in plaintiff’s prior 6 cases—where the complaint had been dismissed for failure to state a claim, plaintiff had been 7 given leave to amend, plaintiff had failed to amend, and the case had consequently been 8 dismissed—could not be considered strikes under § 1915(g) because they were dismissed for 9 “failure to prosecute” rather than “failure to state a claim.” Judge Mueller noted that the type of 10 conduct displayed by plaintiff in his prior cases (filing an inadequate complaint and then failing to 11 amend it) could be regulated through the court’s discretionary authority to deny IFP status, but 12 concluded that plaintiff’s past litigation did not amount to abuse and consequently allowed the 13 case to proceed. 14 Thus, the determinations of other judges regarding Bontemps’s “three strikes” status, 15 while helpful, is not entirely uniform and provides conflicting guideposts for addressing the 16 circumstance presented here. In the two cases where plaintiff was found to be a three strikes 17 litigant, the magistrate judges’ recommendations (on which the final order was based) all pre- 18 dated Knapp. And, as defense counsel is undoubtedly aware, there are differing opinions from 19 the Eastern District of California regarding whether a case that is dismissed after a plaintiff fails 20 to amend a complaint that had been found insufficient constitutes a strike under § 1915(g). See 21 Bontemps v. Barnes, No. 2:12-cv-2249 DAD P, 2014 U.S. Dist. LEXIS 123595, at *4 (E.D. Cal. 22 Sept. 3, 2014) (“The undersigned notes that a myriad of issues surrounding the determination of 23 which dismissals count as a strike under § 1915(g) has, of late, consumed considerable judicial 24 resources in both the trial and appellate courts.”), and compare Bontemps v. Callison, No. S-13- 25 0360 KJM AC P, 2014 U.S. Dist. LEXIS 67186, at *6-10 (E.D. Cal. May 15, 2014) (finding that 26 prior dismissals for “failure to prosecute” after the complaint had been found not to state a claim, 27 plaintiff had been given leave to amend, and plaintiff had failed to amend were not strikes under 28 § 1915(g)) with Hudson v. Bigney, No. 2:11-cv-3052 LKK AC P, 2013 U.S. Dist. LEXIS 167444, 3 1 at *7 (E.D. Cal. Nov. 22, 2013) (“A dismissal for failure to prosecute an action constitutes a strike 2 when it is based upon the plaintiff’s failure to file an amended complaint after the original 3 complaint is dismissed for failure to state a claim.”) (adopted in full by 2014 U.S. Dist. LEXIS 4 10539 (E.D. Cal. Jan. 28, 2014)). The Ninth Circuit has addressed this issue directly only in a 5 non-precedential unpublished opinion, upholding a district court order that found such a case to 6 be a strike. Baskett v. Quinn, 225 F. App’x 639, 640 (9th Cir. 2007); see Ninth Circuit Rule 36- 7 3(a) (“Unpublished dispositions and orders of this Court are not precedent[.]”). 8 9 10 11 12 13 14 The court will accordingly review the cases submitted by defendants as purported strikes under the language of § 1915(g) and the guidance provided by Knapp and other relevant precedent.2 Section 1915(g) provides: In 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. 15 Pursuant to that section, a prisoner with three “strikes”—that is, three prior cases or appeals that 16 were dismissed as frivolous, malicious, or for failure to state a claim—cannot proceed in forma 17 pauperis. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). To determine the reason for 18 a prior dismissal, a court must look at the order of dismissal and any other relevant information. 19 Id. at 1121; Knapp, 738 F.3d at 1109. “[T]he procedural mechanism or Rule by which the 20 dismissal is accomplished, while informative, is not dispositive.” Knapp, 738 F.3d at 1109. The 21 party challenging IFP status bears the burden of establishing that the prisoner has three strikes. 22 Id. at 1110. If that party makes a prima facie showing of three strikes, the burden shifts to the 23 prisoner to rebut it. Id. 24 25 In Knapp, the Ninth Circuit explained that it interprets dismissal for “’fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a Federal Rule of 26 27 28 2 It is no small irony that a rule presumably intended to preserve scarce resources has consumed so much attention. It would appear that in some instances addressing the merits in a dispositive motion would have consumed less time and effort. 4 1 Civil Procedure 12(b)(6) dismissal.” Id. (citing Moore v. Maricopa Cnty. Sheriff’s Office, 657 2 F.3d 890, 893 (9th Cir. 2011)). It then addressed the question of whether and when a dismissal 3 for violation of Federal Rule of Civil Procedure 8(a)’s “short and plain statement” requirement 4 could constitute a strike under § 1915(g). Id. at 1110-11. The court noted that “there are multiple 5 ways that [Rule 8(a)] can be violated.” 738 F.3d at 1109. The court observed that a complaint 6 can violate the rule by saying too little (pointing to the threshold allegations required under the 7 Iqbal line of cases), or by saying too much (pointing to cases in which dismissal under Rule 8 was 8 affirmed because of “[p]rolix, confusing complaints” which “impose unfair burdens on litigants 9 and judges.”). Id. The court emphasized that it looks to the underlying reason for the dismissal to 10 determine whether it falls within Section 1915(g)’s three strikes rule. “This means that the 11 procedural mechanism or Rule by which the dismissal is accomplished, while informative, is not 12 dispositive.” Id. at 1109. Thus, as the court in Knapp instructs, a Rule 8(a) dismissal is neither 13 categorically included nor excluded from counting as a § 1915(g) “strike.” Rather, each dismissal 14 under Rule 8(a) must be assessed independently: did the dismissal “result from the court’s 15 appraisal of the merits of the case (i.e., was it ‘frivolous’ or did it ‘fail to state a claim’), or did the 16 dismissal result from an appraisal of the prisoner’s state of mind (i.e., ‘malicious’)?” Id. at 1109- 17 10. As discussed below, the dismissals at issue here resulted from the dismissing court’s 18 appraisal of the merits. 19 As for the dismissals at issue in Knapp, in each instance Knapp was informed that the 20 complaint violated the “short and plain statement” requirement of Rule 8(a) but failed to correct 21 the violation. Id. at 1110. The Ninth Circuit concluded that a dismissal for violation of that 22 aspect of Rule 8(a) constitutes a strike if the violation has been repeated after leave to amend has 23 been granted: 24 25 26 27 28 [A]fter an incomprehensible complaint is dismissed under Rule 8 and the plaintiff is given, but fails, to take advantage of the leave to amend, the judge is left with a complaint that, being irremediably unintelligible, gives rise to an inference that the plaintiff could not state a claim. When a litigant knowingly and repeatedly refuses to conform his pleadings to the requirements of the Federal Rules, it is reasonable to conclude that the litigant simply cannot state a claim. 738 F.3d at 1110 (internal quotation marks and citations omitted, emphasis in original). 5 1 2 3 With these principles in mind, the court turns to the three prior cases filed by plaintiff at issue here: Bontemps v. Kramer, E.D. Cal. Case No. 2:06-cv-2483 (Kramer I). In Kramer I, the 4 court dismissed the complaint on screening with leave to amend. ECF No. 74-2 at 29. 5 Plaintiff had filed two complaints. The original complaint named defendants Kramer, 6 Poole, and Pulley. Id. at 26. The court determined that plaintiff had made no allegations 7 in either complaint against Kramer and Poole. Id. His factual allegations against Pulley 8 failed to state a cognizable claim under the governing legal standard. Id. at 27. 9 Accordingly, the complaint was dismissed. Id. at 29. When plaintiff failed to file an 10 amended complaint, the action was dismissed with citation to Local Rule 11-1103 and 11 Federal Rule of Civil Procedure 41(b).4 Id. at 31, 35. Thus, both an original and 12 amended complaint were found to fail to state a claim upon which relief could be granted, 13 but the procedural rules cited in the order terminating the case were for failure to 14 prosecute by not filing another amended complaint. 15 Bontemps v. Kramer, E.D. Cal. Case No. 2:06-cv-2580 (Kramer II). In Kramer II, the 16 court again dismissed plaintiff’s complaint on screening, giving leave to amend. ECF 17 No. 74-2 at 46. The court found that the complaint failed to make any factual allegations 18 against defendant Kramer. Id. at 43. Plaintiff’s allegations failed to state a viable 19 20 3 That rule is now renumbered as Local Rule 110. 21 4 Local Rule 11-110 provided: 22 23 Failure of counsel or of a party to comply with these Rules or with any order of the Court may be grounds for imposition by the Court of any and all sanctions authorized by statute or Rule or within the inherent power of the Court. 24 25 26 27 28 Federal Rule of Civil Procedure 41(b) provides: If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it. Unless the dismissal order states otherwise, a dismissal under this subdivision (b) and any dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19—operates as an adjudication on the merits. 6 1 retaliation claim against defendant Pulley. Id. at 43-44. Plaintiff had also failed to state a 2 viable claim under the Americans with Disabilities Act. Id. at 44. Plaintiff’s claim for 3 injunctive relief had been rendered moot by a transfer to a new prison. Id. at 45. 4 Because the complaint failed to state a claim it was dismissed, but the dismissal was with 5 leave to amend. Plaintiff again failed to file an amended complaint. Id. at 48. The order 6 finally ending the action cited to Local Rule 11-110 and Federal Rule of Civil Procedure 7 41(b). Id. at 51-52. 8 9 Bontemps v. Gray, E.D. Cal. Case No. 2:07-cv-2115 (Gray). As in both Kramer cases, the court in Gray dismissed plaintiff’s complaint with leave to amend for failure to state a 10 claim. Id. at 61. The court concluded that the facts alleged failed to state a claim under 11 the Constitution. Id. at 59-60. Once again, plaintiff failed to file an amended complaint, 12 and the case was dismissed with citation to Local Rule 11-110 and Federal Rule of Civil 13 Procedure 41(b). Id. at 63-67. 14 Each of the three cases involved complaints that were dismissed after the court’s appraisal of the 15 sufficiency of the allegations to state a claim upon which relief may be granted. They were 16 found insufficient and the complaints were dismissed with leave to amend. Plaintiff failed to 17 submit any further amended complaints and the orders finally terminating those three cases cited 18 to Local Rule 11-110 and Federal Rule of Civil Procedure 41(b) (rules which address dismissal 19 for failure to obey a court order or prosecute a case). Thus, the question presented is whether 20 they qualify as strikes for having been dismissed failure to state a claim even though leave to 21 amend was granted but not pursued. 22 Knapp makes clear that the citations in the dismissal orders are to the procedural 23 mechanism by which the cases were ultimately terminated but are not determinative of the 24 “strikes” question. Knapp, 738 F.3d at 1109-10. Rather, the court must consider the reason 25 underlying the dismissal order. Id. On that question, it is undeniable that the underlying reason 26 for the dismissals in all three cases turned on the dismissing court’s appraisal of the merits of the 27 ///// 28 ///// 7 1 complaint under a Rule 12(b)(6) standard.5 The language of the initial screening orders on which 2 final dismissal was based is plainly stated—the complaints were dismissed because the facts 3 alleged in those complaints failed to state a claim upon which relief could be granted, a 4 fundamental threshold of merit that any plaintiff must satisfy to proceed with a case. 5 In each instance, plaintiff was afforded the opportunity to cure the defects. If there were 6 additional facts that could have made plaintiff’s claims viable, plaintiff was given the 7 opportunity to present them. He did not. The rub of the problem is determining which way, if 8 any, that cuts for purposes of Section 1915(g). The analysis adopted in Bontemps v. Salinas, 9 E.D. Cal. Case No. 2:12-cv-2185 (“Salinas”) (see ECF Nos. 40 and 44 therein) focuses on the 10 fact that by not filing an amended complaint the plaintiff does not repeat the Rule 8 violation 11 within the same case. In concluding that Bontemps’s filings in Kramer I should not constitute a 12 strike, Salinas reads Knapp as dictating that only where there the previously dismissed case 13 under consideration “involved persistent filing of non-compliant complaints despite repeated 14 warnings about the requirements of Rule 8” should the ultimate dismissal of the action count as a 15 strike under the statute. Salinas, ECF No. 40 at 5. There is support for that view in Knapp. The 16 Salinas analysis emphasizes the “repeated and knowing” language of Knapp6 in concluding that 17 the dismissal of Bontemps’s complaint in Kramer I is not a strike. Salinas, ECF No. 40 at 5 18 (noting that Bontemps received a “single warning and did not thereafter file complaints that 19 continued to violate Rule 8” and concluding that “[a]ccordingly, the dismissal of the action 20 amounted to a simple dismissal for failure to prosecute, rather than a dismissal for repeated 21 disobedience of Rule 8 and of the district court’s orders, as in Knapp.). But Knapp admonishes 22 23 24 25 5 Had the dismissing court found plaintiff’s complaint to state a claim, there never would have been a question of whether he must file an amended complaint, nor the ancillary question of whether his failure to do so provides a second reason for the dismissal, i.e. failure to prosecute and failure to comply with the court’s order to file the amended complaint. 6 26 27 28 “We hold that dismissals following the repeated violation of Rule 8(a)'s ‘short and plain statement’ requirement, following leave to amend, are dismissals for failure to state a claim under § 1915(g). While past cases have found that this type of strike is accrued by a Rule 12(b)(6) dismissal, they do not hold that this is the only possible way.” Knapp, 738 F.3d at 1110 (citing Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011)). 8 1 that that the procedural mechanism or Rule by which the dismissal is accomplished is not 2 dispositive, and ultimately instructs that the determinative question is instead whether the reason 3 underlying the ultimate dismissal involved “the court’s appraisal of the merits of the case (i.e., 4 was it ‘frivolous’ or did it ‘fail to state a claim’).” 738 F.3d at 1109. Indeed, in the sentences 5 immediately following the “repeated and knowing” language, the Ninth Circuit adopted as 6 “persuasive” the Seventh Circuit’s analysis in Paul v. Marberry, stating that “after an 7 incomprehensible complaint is dismissed under Rule 8 and the plaintiff is given, but fails, to take 8 advantage of the leave to amend, ‘the judge [is] left with [ ] a complaint that, being irremediably 9 unintelligible, [gives] rise to an inference that the plaintiff could not state a claim.’” Knapp, 738 10 F.3d at 1110 (quoting Paul v. Marberry, 658 F.3d 702, 705 (7th Cir. 2011)). The analysis of 11 Paul adopted by the Ninth Circuit further clarifies: “But when, as in each of the three cases on 12 which the judge in the present case based his three-strike finding, the plaintiff is told to amend 13 his unintelligible complaint and fails to do so, the proper ground of dismissal is not want of 14 prosecution but failure to state a claim, one of the grounds in section 1915(g) for calling a strike 15 against a prisoner plaintiff.” Paul v. Marberry, 658 F.3d at 705. 16 Applying Knapp and Paul here, the fact that each of the previously-dismissed complaints 17 was reviewed for potential merit and assessed by the court as failing to state a claim is 18 unavoidable. This court, in evaluating each previously-dismissed actions for purposes of the 19 three strikes rule under the statute, cannot ignore that each of the earlier complaints was 20 specifically found to have failed to state a claim. While the procedural rules cited in the orders 21 finally terminating the actions relate to failure to prosecute (rather than failure to state a claim), 22 the complaints in all three actions were evaluated on initial screening, found to be inadequate 23 because their allegations did not articulate facts that could present a cognizable claim, and the 24 cases were finally terminated because plaintiff – in spite of the opportunity to do so – never did 25 file a complaint that satisfied Rule 12(b)(6). Neither can the court ignore that the screening of 26 each complaint consumed court resources that the statue purports to preserve under the three 27 strikes rule. While Bontemps did not submit amended complaints, that fact does not undo what 28 transpired leading to the dismissal for failure to state a claim. The repeated filing of non9 1 cognizable claims and abandonment of those claims as soon as they are deemed non-cognizable 2 imposes significant burdens on the courts. Section 1915(g) was enacted to address just such 3 activity: 4 In assessing the constitutionality of § 1915(g), we recognized that the Act’s threestrike rule ‘was enacted to curtail the extraordinary costs of frivolous prisoner suits and minimize such costs to the taxpayers.’ Rodriguez v. Cook, 169 F.3d 1176, 1181 (9th Cir. 1999) (“[P]risoners file a disproportionate number of frivolous suits…because of ‘potential gains and low opportunity costs.’… Requiring prisoners to pay filing fees for suits will force them to go through the same thought process non-inmates go through before filing suit, i.e., is filing this suit worth the costs?” (internal citation omitted)). The animating concern was obvious: too many prisoner lawsuits were wastes of the courts’ valuable time. H.R. Rep. No. 104-21 (1995), at 7 (“Too many frivolous lawsuits are clogging the courts, seriously undermining the administration of justice.”). 5 6 7 8 9 10 Knapp, 738 F.3d at 1110-11. 11 Looking to each of the prior dismissals involved here, at bottom lies a complaint in each 12 case with allegations that could not support a cognizable claim and therefore could not proceed 13 under a Rule 12(b)(6) standard which, under the reasoning of Knapp, is the very core of the three 14 strikes provision in Section 1915(g). Accordingly, the undersigned finds that Kramer I, Kramer 15 II, and Gray should count as “strikes” under § 1915(g); each having been dismissed because 16 plaintiff failed to state a claim upon which relief could be granted. 17 Defendants have met their burden of establishing that plaintiff’s IFP status should be 18 revoked, and plaintiff has presented no evidence or argument rebutting that conclusion. 19 (Plaintiff simply argues that the court has already denied the prior motion to revoke IFP status 20 and should similarly deny this one. ECF No. 79.) 21 III. Recommendation 22 For the reasons stated above, it is hereby RECOMMENDED that: 23 1. Defendant Sotak’s March 4, 2014 motion to revoke plaintiff’s IFP status (ECF No. 74) 24 be granted; 25 2. The court’s order of February 1, 2010 (ECF No. 9) granting IFP status be vacated and 26 plaintiff’s IFP status revoked; and 27 ///// 28 ///// 10 1 3. Plaintiff be required to furnish the statutory filing fee of $3507 to proceed with this 2 action and be admonished that failure to pay the filing fee within thirty days of any 3 order adopting this recommendation will result in dismissal of this action. 4 These findings and recommendations are submitted to the United States District Judge 5 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 6 after being served with these findings and recommendations, any party may file written 7 objections with the court and serve a copy on all parties. Such a document should be captioned 8 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 DATED: February 25, 2015. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Although the civil case filing fee is now $400.00, it was $350.00 at the time that plaintiff initiated this action. 11
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