(PC) Hollis v. Sahota ( 2020 )


Menu:
  • 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN GLENN HOLLIS, No. 2:13-cv-1841-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 P. SAHOTA, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. Shortly after filing his complaint, plaintiff filed a motion to proceed in forma 19 pauperis and consented to the jurisdiction of a magistrate judge. ECF Nos. 3 & 4. On May 21, 20 2014, before any defendant was served, the undersigned magistrate judge denied plaintiff’s 21 application to proceed in forma pauperis pursuant to the “three-strikes” provision of 28 U.S.C. 22 § 1915(g) and dismissed the case without prejudice to re-filing upon prepayment of the $400 23 filing fee. ECF No. 10. 24 On June 27, 2014, plaintiff appealed the order dismissing this action. ECF No. 12. On 25 July 9, 2014, plaintiff filed a motion for relief from judgment. ECF No. 14. On July 11, 2014, 26 the undersigned denied plaintiff’s motion, finding that plaintiff’s appeal divested the court of 27 jurisdiction to consider it. ECF No. 15. The appellate court dismissed the appeal on August 19, 28 2014, but that order was not docketed in this action until May 18, 2020. ECF No. 24. 1 On April 2, 2018 and again on April 30, 2020, plaintiff moved for relief from judgment 2 pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. ECF Nos. 19 & 23. Plaintiff 3 cites to Williams v. King, 875 F.3d 500 (9th Cir. 2017), which held that all parties, including 4 unserved defendants, must consent in order for jurisdiction to vest with the magistrate judge 5 pursuant to 28 U.S.C. § 636(c)(1). Indeed, because all parties did not consent to proceed before 6 the magistrate judge, the May 21, 2014 order and judgment are void lack of jurisdiction. 7 Accordingly, plaintiff’s motion for relief from judgment must be granted. See Fed. R. Civ. P. 8 60(b)(4). Plaintiff’s application for leave to proceed will be reconsidered and addressed by 9 proposed findings and recommendation. 10 On reconsideration of plaintiff’s application to proceed in forma pauperis, the application 11 again must be denied. Court records reflect that on at least three prior occasions, plaintiff has 12 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 13 state a claim upon which relief may be granted. See (1) Hollis v. Mazon-Alec, 1:03-cv-6842- 14 REC-DLB P (E.D. Cal. Jan. 27, 2005) (order dismissing action for failure to state a claim); (2) 15 Hollis v. Villanueus, 3:07-cv-04538 (N.D. Cal. Feb. 2, 2009) (order dismissing action for failure 16 to state a claim); (3) Hollis v. Villanueus, 08-15523 (9th Cir. Aug 26, 2009) (order dismissing 17 appeal after district court found appeal to be frivolous), (see Hollis v. Villanueus, 3:07-cv-04538 18 (N.D. Cal.) (Apr. 7, 2009 order denying application to proceed in forma pauperis on appeal as 19 frivolous)); see also Hollis v. Downing, No. 2:09-cv-3431-MCE-KJN, 2010 U.S. Dist. LEXIS 20 130441 (E.D. Cal. Dec. 8, 2010), adopted by 2011 U.S. Dist. LEXIS 14078 (E.D. Cal. Feb. 10, 21 2011) (designating plaintiff a three-strike litigant). 22 In the September 5, 2013 complaint, plaintiff stated he was “in imminent danger of 23 serious physical injury [because he] has lumbar degenerative disk disease with arthritic facets and 24 lumbar spinal stenosis which is becoming worse.” ECF No. 1 ¶ 23. Plaintiff claimed that there 25 was a two-week period of time where he felt “increased extreme[e] pain” because defendants 26 interfered with his tramadol prescription. After plaintiff complained, however, the prescription 27 was renewed, although it was not relieving “100%” of his pain. ECF No. 1 ¶ 15. A medical 28 ///// 1 record attached to the complaint noted that plaintiff’s disease was “probably . . . causing his 2 pain.” Id. at 20. 3 In sum, plaintiff’s complaint alleged that at the time of filing, he was receiving tramadol, 4 but still experiencing some pain. This allegation – that he was not entirely pain-free – does not 5 demonstrate that he was under imminent threat of serious physical injury when he filed the 6 complaint. Therefore, the imminent danger exception does not apply. See Oden v. Cambra, C 7 97-3898-SI, 1999 U.S. Dist. LEXIS 4233, at *11 (N.D. Cal. Mar. 30, 1999) (“doctors (inside and 8 outside of prisons) are not guarantors of pain-free living for their patients. There may be 9 conditions . . . that will result in some pain regardless of what a doctor does”); Villegas v. Cate, 10 1:10-cv-1916-AWI-SKO, 2012 U.S. Dist. LEXIS 171, at *8 (E.D. Cal. Jan. 3, 2012) (“There are 11 certain medical conditions with no end-cure and for which it is impossible to achieve a pain-free 12 or symptom-free status.”); see also Snipes v. DeTella, 95 F.3d 586, 592 (7th Cir. 1996) (“It would 13 be nice if after appropriate medical attention pain would immediately cease, its purpose fulfilled; 14 but life is not so accommodating. Those recovering from even the best treatment can experience 15 pain.”). Because plaintiff has not paid the filing fee and is not eligible to proceed in forma 16 pauperis, this action must be dismissed. 17 Accordingly, IT IS ORDERED that the Clerk of the Court shall randomly assign a United 18 States District Judge to this action. 19 Further, IT IS RECOMMENDED that: 20 1. Plaintiff’s motion for relief from judgment (ECF Nos. 19 & 23) be granted and the 21 Clerk be ordered to vacate the May 21, 2014 order (ECF No. 10) and judgment (ECF 22 No. 11) and reopen the case. 23 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 3) be denied; and 24 3. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of 25 any order adopting these findings and recommendations and be warned that failure to 26 do so will result in the dismissal of this action. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days wOASe 2 LO UVM LOT EL VAIN ER RRC eo PIR Ne AY Tt 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 4 | objections shall be served and filed within fourteen days after service of the objections. The 5 || parties are advised that failure to file objections within the specified time may waive the right to 6 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 7 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 8 || Dated: July 6, 2020. 9 tid, PDEA 10 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Document Info

Docket Number: 2:13-cv-01841

Filed Date: 7/6/2020

Precedential Status: Precedential

Modified Date: 6/19/2024