(PC) Evans v. Sherman ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD A. EVANS, No. 1:19-cv-00226-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS, GRANTING 14 S. SHERMAN, et al., PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND DENYING 15 Defendants. PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF 16 (Doc. Nos. 2, 7, 12) 17 18 19 Plaintiff Richard A. Evans, a state prisoner, proceeds pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. On February 15, 2019, plaintiff commenced this action by filing a 21 complaint (Doc. No. 1) and an application to proceed in forma pauperis (Doc. No. 2). The matter 22 was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 23 Rule 302. 24 On February 21, 2019, the assigned magistrate judge issued findings and 25 recommendations, recommending that plaintiff’s application to proceed in forma pauperis be 26 denied and that he be required to pay the $400.00 filing fee in full to proceed with this action 27 because: (1) he is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the 28 allegations in plaintiff’s complaint to do not satisfy the “imminent danger of serious physical 1 injury” exception to § 1915(g). (Doc. No. 7.) Those findings and recommendations were served 2 on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) 3 days after service. (Id. at 2–3.) On March 4, 2019, plaintiff filed objections (Doc. No. 9.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 5 conducted a de novo review of the case. Having carefully reviewed the entire file, the 6 undersigned declines to adopt the findings and recommendations. Specifically, the undersigned 7 finds that two of the three dismissal orders relied upon in the findings and recommendations as 8 strikes under 28 U.S.C. § 1915(g) are not strike dismissals under the statute. Each of those 9 dismissal orders relied upon in the findings and recommendations is addressed in turn below. 10 The findings and recommendations rely upon the dismissal order in Evans v. Suisun 11 Police Department, 2:17-cv-01889-KJM-CMK (E.D. Cal. Aug. 7, 2018) as a prior strike. A 12 review of the docket in that case establishes that the action was dismissed “for failure to state a 13 claim and for lack of prosecution and failure to comply with court rules and orders.” (Suisun 14 Police Department, Doc. No. 16 at 2) (emphasis added). Accordingly, the dismissal of that case 15 counts as a strike against plaintiff under 28 U.S.C. § 1915(g). 16 Next, the findings and recommendations rely upon the dismissal in Evans v. California 17 Department of Corrections and Rehabilitation, 2:17-cv-01891-JAM-KJN (E.D. Cal. Jan. 18, 18 2018) (“CDCR 1”) as a strike. In the order dismissing that action, the district judge “adopted in 19 full” the magistrate judge’s recommendation and dismissed the action without prejudice. 20 (CDCR 1, Doc. No. 13 at 1.) Although the findings and recommendations pending before the 21 undersigned in the present case state that CDCR 1 was “dismissed . . . for failure to prosecute, 22 following a screening order dismissing [the] complaint for failure to state a claim” (Doc. No. 7 at 23 2 n.1), the undersigned notes that in CDCR 1, the dismissal order adopting the findings and 24 recommendations did not state the grounds upon which it was dismissing the case without 25 prejudice (see CDCR 1, Doc. No. 13 at 1). Moreover, the findings and recommendations in 26 CDCR 1 pointed only to plaintiff’s failure to file an amended complaint as directed as the basis 27 for the dismissal. (CDCR 1, Doc. No. 12 at 1.) The undersigned acknowledges that the 28 magistrate judge’s screening order in CDCR 1 did include a statement that “plaintiff’s allegations 1 fail[ed] to state a cognizable Eighth Amendment violation.” (CDCR 1, Doc. No. 9 at 3.) 2 However, the undersigned is not persuaded that such a conclusion reached by a magistrate judge 3 in a screening order that grants leave to amend can form the basis of a § 1915(g) strike dismissal 4 under circumstances where that plaintiff subsequently fails to file an amended complaint, the 5 magistrate judge recommends dismissing the action solely for failure to file an amended 6 complaint, and the district court “adopts in full” that recommendation and dismisses the case 7 without any reference to whether the original complaint failed to state a claim. 8 The findings and recommendations pending before the undersigned in the present case 9 rely on the decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), for the proposition that 10 when courts “review a dismissal to determine whether it counts as a strike, the style of the 11 dismissal or the procedural posture is immaterial. Instead, the central question is whether the 12 dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” (Doc. No. 7 at 13 2 n.1) (quoting Harris, 863 F.3d at 1142).1 However, applying the holding in Harris, the 14 dismissal in CDCR 1 does not count as a strike under § 1915(g) because the district court did not 15 dismiss CDCR 1 for failure to state a claim. See Harris, 863 F.3d at 1143 (“Accordingly, we hold 16 that when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) 17 the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the 18 dismissal counts as a strike under § 1915(g).”) (emphasis added). Indeed, in each of the four 19 cases that were counted as strikes against the plaintiff-appellant in Harris, the screening order 20 dismissing for failure to state a claim with leave to amend was issued by a district judge, not a 21 ///// 22 ///// 23 1 This same principle was adopted by the court in El-Shaddai v. Zamora, 833 F.3d 1036, 1042 24 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). Nonetheless, the Ninth Circuit has also held that “prior dismissals . . . qualify as strikes only if, after reviewing the 25 orders dismissing those actions and other relevant information, the district court determined that they had been dismissed because they were frivolous, malicious or failed to state a claim.” 26 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (emphasis added). Finally, a PLRA strike 27 is only assessed “when the ‘case as a whole’ is dismissed for a qualifying reason under the Act.” Washington v. Los Angeles Cty. Sheriff’s Dept., 833 F.3d 1048, 1057 (9th Cir. 2016) (quoting 28 Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007)). 1 magistrate judge.2 The magistrate judge’s screening order in CDCR 1 was not an order of 2 dismissal, nor could it have been. See Williams v. King, 875 F.3d 500, 502–05 (9th Cir. 2017) 3 (because unserved, not yet appearing named defendants had not consented to magistrate judge 4 jurisdiction, the assigned magistrate judge lacked jurisdiction to dismiss the prisoner plaintiff’s 5 complaint for failure to state a claim upon screening); see also Branch v. Umphenour, 936 F.3d 6 994, 1005 (9th Cir. 2019) (“Without consent, a magistrate judge is limited to submitting a report 7 and recommendation on dispositive pretrial motions, including motions to dismiss for failure to 8 state a claim . . .. The magistrate judges who screened Branch’s various complaints lacked 9 jurisdiction to dismiss his claims.”).3 In short, in CDCR 1 the court simply never dismissed 10 plaintiff’s complaint on the ground that he failed to state a claim. Rather, according to the district 11 judge’s order of dismissal, that case was dismissed solely due to plaintiff’s failure to file an 12 amended complaint, i.e. for failure to abide by the court’s order or to prosecute. Therefore, 13 neither the decision in Harris nor the one in El-Shaddai compels a finding that the dismissal of 14 CDCR 1 counts as a strike dismissal against plaintiff. 15 ///// 16 2 The practice of designating dismissals as “strikes” under § 1915(g) in orders of dismissal has 17 been criticized because it is the subsequent courts who must determine whether a plaintiff is barred from maintaining an action in forma pauperis by the three strikes rule. In this regard, the 18 Second Circuit has stated: “[D]istrict courts should not issue these strikes one by one, in their 19 orders of judgment, as they dispose of suits that may ultimately—upon determination at the appropriate time—qualify as strikes under the terms of § 1915(g).” DeLeon v. Doe, 361 F.3d 93, 20 95 (2d Cir. 2004); see also Andrews v. King, 398 F.3d 1113, 1119 n.8 (9th Cir. 2005) (“[T]he district court is not required to determine whether the prisoner’s case is frivolous, malicious or 21 fails to state a claim and therefore will count as a future strike under § 1915(g).”); Shabbazz v. Fischer, No. 9:11-CV-0916 (TJM/ATB), 2012 WL 3241653, at *1 (N.D.N.Y Aug. 7, 2012) (“In 22 other words, a strike may not be assessed at the same time that the action or appeal is dismissed. 23 Instead, it is up to a later judge to determine, when the time is right, whether three previously dismissed actions or appeals might constitute strikes.”); Pough v. Grannis, 08CV1498–JM 24 (RBB), 2010 WL 3702421, at *13 (S.D. Cal. July 16, 2010) (denying defendants’ request that the court designate a dismissal as a strike under § 1915(g) at the time of dismissal). Nonetheless, 25 unlike the present case, the district judge’s screening orders in Harris also specifically warned plaintiff that failure to file an amended complaint would result in a strike dismissal. 26 27 3 The Ninth Circuit also observed: “This juxtaposition—“the court” on the one hand, “a magistrate judge” on the other—suggests two different entities. In context, then, “the court” is 28 most naturally understood as referring to a district judge.” Branch, 936 F.3d at 1002. 1 For these same reasons, the court finds that the last case relied upon in the pending 2 findings and recommendations as a strike dismissal—the dismissal in Evans v. California 3 Department of Corrections and Rehabilitation, 2:17-cv-01890-JAM-CMK (E.D. Cal. Apr. 26, 4 2018) (“CDCR 2”)—also does not count as a strike under § 1915(g). In CDCR 2, the district 5 judge “adopted in full” the assigned magistrate judge’s recommendation and specifically 6 dismissed the action solely “for plaintiff’s failure to prosecute.” (CDCR 2, Doc. No. 14 at 2 7 (citing E.D. Cal. R. 110; Fed. R. Civ. P. 41).) Moreover, the findings and recommendations that 8 were adopted in the order of dismissal issued in CDCR 2 recommended dismissing the action 9 solely due to plaintiff’s “failure to prosecute,” citing the same rules. (CDCR 2, Doc. No. 13 at 2.) 10 As in CDCR 1, in CDCR 2, the magistrate judge screened the original complaint and found that 11 “[p]laintiff fail[ed] to allege a cognizable Eighth Amendment claim.” (CDCR 2, Doc. No. 9 at 6.) 12 However, that screening order was also issued by the magistrate judge, who, for the reasons 13 discussed above, lacked jurisdiction to dismiss the complaint. See Williams, 875 F.3d at 502–05; 14 Branch, 936 F.3d at 1005. In short, the district court never issued any order dismissing the 15 complaint in that action on the ground that it failed to state a claim. Accordingly, the undersigned 16 concludes that the dismissal of CDCR 2 also does not count as a strike dismissal against plaintiff.4 17 Finally, after the magistrate judge issued the findings and recommendations pending 18 before the court in this case, plaintiff filed a “motion for federal protection.” (See Doc. No. 12.) 19 Therein, plaintiff argues that various state and federal officials have “failed to consider, 20 recognize, or acknowledge [his] state & federal due process rights,” and that he has been falsely 21 charged with and wrongfully convicted of sexually abusing minors. (Id. at 1.) Plaintiff seeks 22 federal protection, release from CDCR custody, and that judicial notice be taken of several 23 24 4 The court also observes that in considering another issue involving application of § 1915(g), the Ninth Circuit has cautioned that an “overly detailed” inquiry by the court would only have the 25 effect of “spawning additional litigation and creating mini-trials over whether a prisoner” is barred from proceeding in forma pauperis pursuant to that provision. Williams v. Paramo, 26 775 F.3d 1182, 1190 (9th Cir. 2015). The warning is equally applicable here. As evidenced by 27 this case, the reviewing of screening orders in earlier litigation that were never adopted by the district court in order to determine a plaintiff’s eligibility to proceed in forma pauperis would 28 hardly appear to be a wise use of scarce judicial resources. 1 | pending actions. (/d.) The court interprets plaintiff's motion as one seeking preliminary 2 | injunctive relief. However, “[a] plaintiff seeking a preliminary injunction must establish that he 3 | is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of 4 | preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the 5 | public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). 6 | Here, plaintiff's motion fails to meet any of these requirements. Accordingly, plaintiff's motion 7 | will be denied. 8 For the reasons set forth above: 9 1. The undersigned declines to adopt the February 21, 2019 findings and 10 recommendations (Doc. No. 7); 11 2. Plaintiffs application to proceed in forma pauperis (Doc. No. 2) is granted; 12 3. Plaintiff's motion for federal protection (Doc. No. 12), deemed by the court to be 13 a motion for preliminary injunctive relief, is denied; and 14 4. The matter is referred back to the assigned magistrate for proceedings consistent 15 with this order. 16 | IT IS SO ORDERED. si □ "7 | Dated: _ October 18, 2019 DL A Drage 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28