(PC) Hudson v. Bigney, No. 2:2011cv03052 - Document 32 (E.D. Cal. 2013)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 11/22/2013 VACATING, without prejudice, plaintiff's 28 motion to compel discovery; and RECOMMENDING that defendants' unopposed 27 motion to revoke pl aintiff's ifp status be granted on the ground that plaintiff is barred from proceeding in this action under the "three strikes" provision of 28 U.S.C. § 1915(g); plaintiff be directed to pay the $350 filing fee in full with in thirty days of adoption of these findings and recommendations, should that occur; and this case be dismissed should plaintiff fail to pay the filing fee within the time prescribed. Referred to Judge Lawrence K. Karlton; Objections due within 21 days. (Yin, K)
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(PC) Hudson v. Bigney Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS L. HUDSON, 12 Plaintiff, 13 14 No. 2:11-cv-3052 LKK AC P v. ORDER & C/O S. BIGNEY, et al., 15 FINDINGS & RECOMMENDATIONS Defendants. 16 Plaintiff, a state prisoner proceeding pro se, has filed this action pursuant to 42 U.S. § 17 18 1983. Plaintiff filed his complaint on November 17, 2011. ECF No. 1. The court granted 19 plaintiff’s request to proceed in forma pauperis by order filed on December 13, 2011. ECF No. 5. 20 The complaint was found appropriate for service upon defendants Bigney and Adam. Id. 21 Defendants’ motion to dismiss was denied on February 6, 2013. See ECF Nos. 20, 22. 22 Defendants filed an answer on March 6, 2013. ECF No. 23. A Discovery and Scheduling Order 23 was filed on March 8, 2013. ECF No. 24. Pending before the court are (1) defendants’ motion to revoke plaintiff’s in forma pauperis 24 25 status (ECF No. 27), to which plaintiff has filed no opposition; and (2) plaintiff’s motion to 26 compel discovery (ECF No. 28), to which defendants have filed no response. 27 //// 28 //// 1 Dockets.Justia.com 1 2 3 I. Motion to Revoke A. Standards 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement 4 and prosecution of any suit without prepayment of fees by a person who submits an affidavit 5 indicating that the person is unable to pay such fees. However, 6 7 8 9 10 11 [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. 28 U.S.C. § 1915(g). 12 In forma pauperis status may be acquired and lost during the course of litigation. 13 Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by 14 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g)) 15 makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma 16 pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination 17 thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). 28 U.S.C. § 18 1915(g) should be used to deny a prisoner’s in forma pauperis status only upon a determination 19 that each action reviewed (as a potential strike) is carefully evaluated to determine that it was 20 dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 21 1121 (9th Cir. 2005). Defendant has the burden to “produce documentary evidence that allows 22 the district court to conclude that the plaintiff has filed at least three prior actions . . . dismissed 23 because they were ‘frivolous, malicious or fail[ed] to state a claim.’” Id., at 1120 (quoting 24 § 1915(g)). Once defendants meet their initial burden, it is plaintiff’s burden to explain why a 25 prior dismissal should not count as a strike. Id. If the plaintiff fails to meet that burden, 26 plaintiff’s IFP status should be revoked under § 1915(g). Id. 27 28 In Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011), the Ninth Circuit found that “a dismissal must be final before it counts as a ‘strike’ for § 1915(g) purposes.” Thus, “a 2 1 district court’s dismissal of a case does not count as a ‘strike’ under § 1915(g) until the litigant 2 has exhausted or waived his opportunity to appeal. This means a dismissal ripens into a ‘strike’ 3 for § 1915(g) purposes on the date of the Supreme Court’s denial or dismissal of a petition for 4 writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ 5 of certiorari expired, if he did not.” Id. at 1100 (internal quotation omitted). “If a prisoner does 6 not appeal a dismissal, the dismissal counts as a ‘strike’ from the date when his time to file a 7 direct appeal expired.” Id., n.6. 8 B. Discussion 9 Defendants contend in their motion that plaintiff’s litigation history shows that he has at 10 least three prior strikes. Per defendants’ request, the undersigned takes judicial notice of the 11 following cases:1 12 1. Hudson v. Meester, No. C 02-cv-000925 (PR) (N.D. Cal.). On November 28, 2001, 13 plaintiff filed a complaint against a public defender and another attorney assigned to him claiming 14 that they had failed to provide him effective assistance of counsel in a state court criminal action, 15 violating his civil rights. ECF No. 27-3, Exhibit A. The district court determined that his claims 16 against two public defenders “fail[ed] to state a cognizable action under 42 U.S.C. § 1983,” 17 dismissing the complaint without leave to amend, ruling that plaintiff could not cure its defects by 18 amending it and that “[h]is request for leave to proceed in forma pauperis was rendered moot by 19 the dismissal.” Id., Ex. B. Plaintiff’s subsequent motions for appointment of counsel were 20 denied as moot because, on April 3, 2002, the complaint had been dismissed because his “claims 21 failed to state a cognizable action under 42 U.S.C. §1983.” Id., Ex. C. 22 2. Hudson v. Carey, No. 2:06-cv-0100 MCE DAD P (E.D. Cal.). This case was filed on 23 January 17, 2006. See, Case Docket for 2:06-cv-0100 at ECF No. 1. Finding that plaintiff had 24 not filed a proper complaint and that the court was unable to determine whether the action could 25 proceed against any defendant, the Magistrate Judge dismissed the complaint by order filed on 26 November 16, 2006. Id., ECF No. 12. Plaintiff’s amended complaint was dismissed with 27 28 1 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 3 1 plaintiff given a “final opportunity to submit a proper pleading that states federal claims upon 2 which relief can be granted.” Id., ECF No. 15. After granting plaintiff an extension of time to 3 file a second amended complaint, the Magistrate Judge recommended dismissal of this action 4 without prejudice when plaintiff failed to file a further amended complaint. Id., ECF Nos. 17, 18. 5 Plaintiff was then granted an extension of time to file his objections to the findings and 6 recommendations. Id., ECF Nos. 19, 20. No objections were filed and the case was dismissed 7 without prejudice by order filed on May 17, 2007. Id., ECF No. 21; see also, ECF No. 27-3 in 8 2:11-cv-3052 (the instant case), Ex. I. 9 3. Hudson v. Agyeman, No. 2:08-cv-3031 CMK P (E.D. Cal.). On December 15, 2008, 10 plaintiff filed a complaint alleging that he had been subjected to a colonoscopy without his 11 consent which resulted in medical problems for him. See, Case Docket for 2:08-cv-3031, ECF 12 No. 1. The complaint was dismissed with leave to amend. Id., ECF No. 8. Upon the screening 13 of the amended complaint, the court ordered plaintiff to show cause “why this action should not 14 be dismissed for failure to state a claim.” Id., ECF No. 11. Upon plaintiff’s failure to respond to 15 the show cause order, the court found appropriate “dismissal of this action for failure to state a 16 claim. . . . .” Id., ECF No. 12. The case was dismissed on April 15, 2009, prior to the date on 17 which the instant complaint was filed. Id.; see also, ECF No. 27-3 in 2:11-cv-3052 (the instant 18 case), Ex. J. 19 “[A] dismissal without prejudice counts as a strike, so long as the dismissal is made 20 because the action is frivolous, malicious, or fails to state a claim.” O’Neal v. Price, 531 F.3d 21 1146, 1154 (9th Cir. 2008) (internal citation and quotation marks omitted). A dismissal for 22 failure to prosecute an action constitutes a strike when it is based upon the plaintiff’s failure to 23 file an amended complaint after the original complaint is dismissed for failure to state a claim. 24 See, e.g., Peralta v. Martel, 2010 WL 2629060, *5 (E.D. Cal. 2010) (dismissal for failure to 25 prosecute without prejudice for failure to file an amended complaint constituted a “strike” under § 26 1915(g) where it was “clear from the district court’s reasoning that failure to state a claim was a 27 fully sufficient condition for dismissing” the complaint). The court has evaluated the orders 28 dismissing the three preceding cases and “other relevant information,” as prescribed by the Ninth 4 1 Circuit, and has determined that in each case, even where the language of the final order of 2 dismissal did not precisely so state, the fundamental ground for dismissal was plaintiff’s having 3 “failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 4 Plaintiff failed to file any opposition to defendants’ motion to revoke in forma pauperis 5 status. The undersigned finds that plaintiff is precluded from proceeding in forma pauperis in this 6 action unless plaintiff is under imminent danger of serious physical injury. See 28 U.S.C. 7 1915(g); Canell v. Lightner, 143 F.3d 1210, 1212 (9th Cir. 1998). To meet the exception, 8 plaintiff must have alleged facts that demonstrate that he was under imminent danger at the time 9 of filing the complaint. See Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007) (recognizing 10 the general consensus among federal courts that “[p]risoners qualify for the [imminent danger] 11 exception based on the alleged conditions at the time the complaint was filed.”); Abdul –Akbar v. 12 McKelvie, 239 F.3d 307, 312-14 (3rd Cir. 2001) (en banc); Medberry v. Butler, 185 F.3d 1189, 13 1192-93 (11th Cir. 1999); Ashley v. Dilworth, 147 F.3d 715 (8th Cir.1998); Banos v. O'Guin, 144 14 F.3d 883, 884 (5th Cir. 1998). 15 In considering application of the “imminent danger” exception, the court must liberally 16 construe the pro se prisoner’s allegations and determine whether the complaint plausibly alleges 17 that the prisoner faced “imminent danger of serious physical injury” at the time of filing. 18 Andrews v. Cervantes, 493 F.3d at 1055. In Andrews, the Ninth Circuit adopted the Eighth 19 Circuit rule requiring the prisoner to allege “an ongoing danger” in order for the exception to 20 apply. Id. at 1056. As an example of sufficient allegations, the court discussed Ashley v. 21 Dilworth, 147 F.3d 715 (8th Cir. 1998), in which plaintiff specifically alleged that prison official 22 engaged in an ongoing pattern of placing him near a group of enemy inmates with a history of 23 causing serious injuries. The allegations of multiple past assaults and ongoing proximity satisfied 24 the imminent danger exception. Andrews, 493 F.3d at 1056 (discussing and quoting Ashley, 147 25 F.3d at 717). The Andrews court also relied on Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 26 2003), which states that the §1915(g) exception applies where there are “specific allegations of 27 ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of 28 imminent serious physical injury.” Id. 5 1 Plaintiff’s claims against defendants Adam and Bigney for retaliation and the use of 2 excessive force during a single incident that allegedly occurred on September 12, 2010 do not 3 satisfy the “imminent danger” exception. At the time of filing his complaint on or around 4 November 17, 2011, more than a year later, plaintiff did not allege he was in imminent danger of 5 serious physical injury. The court therefore finds that plaintiff is barred by the three-strikes 6 provision of § 1915(g) from proceeding in this action in forma pauperis. 7 II. 8 9 Motion to Compel Because the court will recommend that plaintiff’s in forma pauperis status be revoked, the undersigned will not consider plaintiff’s motion to compel discovery at this time. Instead, 10 plaintiff’s motion to compel will be vacated from the court’s calendar without prejudice. Should 11 these findings and recommendations be adopted, plaintiff may only re-notice this motion if he 12 timely pays the full filing fee.2 13 14 Accordingly, IT IS ORDERED that plaintiff’s motion to compel discovery (ECF No. 28) is VACATED at this time without prejudice to being re-noticed, if appropriate. 15 IT IS HEREBY RECOMMENDED that: 16 1. Defendants’ unopposed motion to revoke plaintiff’s in forma pauperis status, ECF No. 17 27, be granted on the ground that plaintiff is barred from so proceeding in this action under the 18 “three strikes” provision of 28 U.S.C. § 1915(g); 19 20 2. Plaintiff be directed to pay the $350 filing fee in full within thirty days of adoption of these findings and recommendations, should that occur; 21 22 3. This case be dismissed should plaintiff fail to pay the filing fee within the time prescribed. 23 These findings and recommendations are submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 25 after being served with these findings and recommendations, any party may file written 26 objections with the court and serve a copy on all parties. Such a document should be captioned 27 28 2 Alternatively, absent adoption, plaintiff may re-notice his discovery motion upon such a ruling. 6 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 2 objections shall be served and filed within fourteen days after service of the objections. The 3 parties are advised that failure to file objections within the specified time may waive the right to 4 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 5 DATED: November 22, 2013 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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