(PC)Spencer v. Beard ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD B. SPENCER, No. 1:19-cv-01615-DAD-HBK (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 G. BEARD, et al., DEFENDANT’S MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS 15 Defendants. STATUS 16 (Doc. Nos. 19, 27) 17 18 Plaintiff Edward B. Spencer is a state prisoner proceeding pro se and in forma pauperis in 19 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On November 20, 2019, the then assigned magistrate judge granted plaintiff’s motion to 22 proceed in forma pauperis. (Doc. No. 7.) On September 4, 2020, defendant C. Carlson filed a 23 motion to revoke plaintiff’s in forma pauperis status. (Doc. No. 19.) Defendant alleges that 24 plaintiff has accumulated at least three qualifying strike dismissals and should have been 25 prohibited from proceeding in forma pauperis in this action. (Id.) Plaintiff filed an opposition to 26 defendant’s motion on November 17, 2020, and defendant filed a reply thereto on November 19, 27 2020. (Doc. Nos. 24, 26.) 28 ///// 1 On July 2, 2021, the assigned magistrate judge issued findings and recommendations 2 concluding that defendant Carlson had failed to identify three qualifying strike dismissals 3 incurred by plaintiff, and that plaintiff’s in forma pauperis status should not be revoked. (Doc. 4 No. 27.) The findings and recommendations were served on all parties and contained notice that 5 any objections thereto were to be filed within fourteen (14) days. (Id. at 6.) Defendant filed 6 objections on July 16, 2021. (Doc. No. 28.) 7 In his objections, defendant argues that plaintiff received a third strike in Spencer v. 8 Beeler, et al., 1:13-cv-01624-LJO-BAM (E.D. Cal.), despite that case terminating with plaintiff 9 voluntarily dismissing his claim. (Id. at 2–3.) In support of this argument, defendant relies on the 10 decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), the same case he cited in his 11 original motion. (See id. at 3; Doc. No. 19-1 at 4–5.) However, as noted in the findings and 12 recommendations, the Ninth Circuit in Harris ruled that a certain case counted as a strike where 13 the plaintiff had failed to amend a complaint despite being directed to do so after the court 14 determined the original complaint failed to state a claim. (Doc. No. 27 at 4.) In contrast, 15 plaintiff’s prior case brought against defendant Beeler did not end with a dismissal due to 16 plaintiff’s failure to prosecute or follow a court order; the case ended because plaintiff voluntarily 17 dismissed it. (Id.) 18 As stated in the pending findings and recommendations, the Ninth Circuit “has not 19 addressed whether a voluntary dismissal following a finding of failure to state a claim counts as a 20 strike, and federal courts across the nation are split.” (Doc. No. 27 at 5) (citations omitted). 21 However, in light of the well-recognized rule that a plaintiff has an absolute right to voluntarily 22 dismiss their action and concluding that nothing in the PLRA dictates a contrary conclusion, the 23 undersigned agrees with the findings and recommendations and “finds no reason to penalize a pro 24 se prisoner litigant who exercises his procedural right to elect a voluntary dismissal” by holding 25 that the voluntary dismissal constitutes a strike. (Id.) (citations omitted). 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 27 de novo review of this case. Having carefully reviewed the entire file, including the defendant’s 28 ///// 1 | objections, the court finds the findings and recommendations to be supported by the record and 2 | by proper analysis. 3 Accordingly, 4 1. The findings and recommendations issued on July 2, 2021 (Doc. No. 27) are 5 adopted in full; 6 2. Defendant’s motion to revoke plaintiff's in forma pauperis status (Doc. No. 19) is 7 denied; and 8 3. This case is referred back to the assigned magistrate judge for further proceedings 9 consistent with this order. 10 | IT IS SO ORDERED. a " Dated: _ August 5, 2021 J aL A 4 7 a 12 UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28