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