Goods v. City of Bakersfield Police Department ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES FRANCIS GOODS, ) Case No.: 1:19-cv-0662- AWI - JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) DENYING DEFENDANT’S MOTION TO 13 v. ) REVOKE PLAINTIFF’S IFP STATUS AND ) DISMISS THE FIRST AMENDED 14 CITY OF BAKERFIELD POLICE DEPT., et al., ) COMPLAINT ) 15 Defendants. ) (Doc. 20) ) 16 17 Charles Francis Goods is proceeding in forma pauperis in this action, in which he asserts 18 Officer Teri Harless used excessive force against Plaintiff while placing him under arrest and is liable 19 for a violation of his civil rights. (Doc. 5) Defendant seeks to have Plaintiff’s in forma pauperis status 20 revoked, asserting the First Amended Complaint should be dismissed without prejudice because 21 Plaintiff is a vexatious litigant. (Doc. 20) For the reasons set forth below, the Court recommends 22 Defendant’s motion to dismiss be DENIED. 23 I. Procedural Background 24 Plaintiff initiated this action by filing a complaint against the City of Bakersfield’s Police 25 Department and several of its officers on May 15, 2019. (Doc. 1) Because Plaintiff sought to proceed 26 in forma pauperis, the Court reviewed the complaint pursuant to 28 U.S.C. § 1915(e)(2), which 27 provides the Court “shall dismiss the complaint if it is “frivolous, malicious or fails to state a claim on 28 which relief may be granted; or … seeks monetary relief against a defendant who is immune from 1 such relief.” Although the Court determined Plaintiff initially failed to allege facts sufficient to 2 support his claims, Plaintiff was given leave to amend his complaint. (Doc. 3) 3 Plaintiff filed a First Amended Complaint on June 6, 2019. (Doc. 5) The Court found Plaintiff 4 alleged facts sufficient to support a claim for excessive force against Officer Harless, but failed to state 5 a claim against the other defendants identified. (Doc. 6 at 5-6) Therefore, Plaintiff was informed he 6 could proceed in the action either by attempting to amend his complaint or proceed on the cognizable 7 claim against Officer Harless. (Id. at 7) Plaintiff notified the Court of his intent to proceed on the 8 cognizable claim, and he later dismissed the other claims pursuant to Rule 41 of the Federal Rules of 9 Civil Procedure. (Doc. 12) 10 On October 16, 2019, Officer Harless filed the motion now pending before the Court, seeking 11 revocation of Plaintiff’s in forma pauperis status and dismissal of the complaint. (Doc. 20) 12 II. Proceeding In Forma Pauperis 13 In general, the Court may authorize the commencement of an action without prepayment of fees 14 “by a person who submits an affidavit that includes a statement of all assets such person . . . possesses 15 [and] that the person is unable to pay such fees or give security therefor.” 28 U.S.C. § 1915(a). 16 However, permission to proceed in forma pauperis for prisoners is limited under the Prison Litigation 17 Reform Act (PLRA), which was “intended to eliminate frivolous lawsuits” brought by prisoners. Cano 18 v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). Specifically, the PLRA provides: 19 In 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 20 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 21 state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 22 23 28 U.S.C. § 1915(g). 24 As the Supreme Court explained, this “three strikes rule” was part of “a variety of reforms 25 designed to filter out the bad claims filed by prisoners and facilitate consideration of the good.” 26 Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). 27 The Ninth Circuit explained that “[n]ot all unsuccessful cases qualify as a strike,” and under the plain 28 language of the PLRA, strikes “are prior cases or appeals, brought while the plaintiff was a prisoner, 1 which were dismissed on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim.” 2 Andrews v. King, 398 F.3d 1113, 1116 n.1, 1121 (9th Cir. 2005). Once a prisoner has accumulated 3 three strikes, he is prohibited by Section 1915(g) from pursuing any other action in forma pauperis in 4 federal court unless he is in “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g). 5 III. Vexatious Litigants 6 Pursuant to Local Rule 151(b), the Eastern District of California has adopted the provisions of 7 Title 3A, part 2 of the California Code of Civil Procedure regarding vexatious litigants. Under 8 California law, a vexatious litigant is defined as a person who: 9 (1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court 10 that have been . . . finally determined adversely to the person . . . [or] (2) After a litigation has been finally determined against the person, repeatedly relitigates 11 or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally 12 determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or 13 defendants as to whom the litigation was finally determined. 14 15 Cal. Code Civ. Pro. § 391(b). 16 The Ninth Circuit explained that “[f]lagrant abuse of the judicial process cannot be tolerated 17 because it enables one person to preempt the use of judicial time that properly could be used to 18 consider the meritorious claims of other litigants.” De Long, 912 F.2d at 1148. Under federal law, the 19 Court is instructed to consider “both the number and content of the filings as indicia of the 20 frivolousness of the litigant’s claims.” Id., 912 F.2d at 1148. “The plaintiff’s claims must not only be 21 numerous, but also be patently without merit.” Moy v. United States, 906 F.2d 467, 470 (9th Cir. 22 1990). Therefore, prior to declaring litigant “vexatious,” the Court must (1) provide the litigant notice 23 and a chance to be heard, (2) create an adequate record for review, (3) make substantive findings as to 24 the frivolous or harassing nature of the litigant’s actions, and (4) ensure any pre-filing order is 25 “narrowly tailored to closely fit the specific vice encountered.” De Long, 912 F.2d at1147-48; Molski 26 v. Evergreen Dynasty Corp., 500 F.3d 1047, 1057 (9th Cir. 2007). 27 Though the first two requirements are procedural, the latter two are substantive, and a “separate 28 set of considerations” may provide a “helpful framework” in “applying the two substantive factors.” 1 Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014), 761 F.3d at 1062 2 (citation omitted). These substantive considerations are: “(1) the litigant’s history of litigation and in 3 particular whether it entailed vexatious, harassing or duplicative lawsuits; (2) the litigant’s motive in 4 pursuing the litigation, e.g., does the litigant have an objective good faith expectation of prevailing?; 5 (3) whether the litigant is represented by counsel; (4) whether the litigant has caused needless expense 6 to other parties or has posed an unnecessary burden on the courts and their personnel; and (5) whether 7 other sanctions would be adequate to protect the courts and other parties.” Molski, 500 F.3d at 1058 8 (quoting Safir v. U.S. Lines, Inc., 792 F.2d 19, 24 (2d Cir. 1986)). 9 IV. Discussion and Analysis 10 Defendant asserts that “Plaintiff is a vexatious litigant who has filed multiple federal civil 11 actions without merit, most of which have been dismissed for failure to state a claim upon which relief 12 may be granted.” (Doc. 20 at 1) According to Defendant, Plaintiff “was not entitled to IFP status” 13 because he “had more than three inmate lawsuits that were dismissed for failure to state a claim upon 14 which relief could be granted.” (Id. at 5) In support of this contention, Defendant identifies the 15 following actions filed by Plaintiff: 16 DATE FILED COURT AND CASE NAME/ DISPOSITION NUMBER 17 04/19/2019 Goods v. Kern County Superior The Court dismissed Goods’ Writ of Court, U.S. District Court, Habeas Corpus without prejudice 18 Eastern District, Case No. 1:19- [Dkt. No. 9]. CV-00505-LJO-SAB-HC 19 05/15/2019 Goods v. Wasco CA State Dismissed without prejudice for failure 20 Prison, U.S. District Court, to exhaust administrative remedies. Eastern District, Case No. [Dkt. 17 at 2]. 21 [1:19-CV-0661-AWI-SAB]1 05/15/2019 Goods v. Bakersfield Police Instant Action. 22 Department, U.S. District Court, Eastern District, Case 23 No. 1:19- CV-00662-AWI-JLT 24 05/15/2019 Goods v. Bakersfield Police The Court issued an Order dismissing Department, U.S. District the action without prejudice for failure 25 Court, Eastern District, Case to state a claim [Dkt. No. 10]. No. 1:19- CV-00663-DAD-JLT 26 27 28 1 Defendant erroneously cited to a different case number in her table, which the Court has corrected for the sake of 1 05/15/2019 Goods v. The County of Kern, The Court issued a Findings and U.S. District Court, Eastern Recommendation denying Goods’ 2 District, Case No. 1:19-CV- motion to proceed IPF and dismissing 0664-DAD-JLT the Complaint for failure to state a claim 3 upon which relief can be granted [Dkt. No. 4]. 4 07/25/2019 Goods v. The County of Kern, The Court issued an Order denying U.S. District Court, Central Goods’ motion to proceed IPF and 5 District, Case No. 2:19-CV- dismissing his Complaint with prejudice 06453-CJC-GJS on the following grounds: (1) failure to 6 provide certified copy of trust fund statement for the last six (6) months; (2) 7 improper venue; (3) frivolous, malicious, or fails to state a claim upon 8 which relief may be granted; (4) leave to amend would be futile; and (5) denial 9 constitutes a strike under “Three Strikes” provision governing the filing of 10 prisoner suits (O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) and barring 11 Goods’ claims pursuant to Heck v. Humprey, 512 U.S. 477 (1994) [Dkt. No. 12 4]. 13 09/16/2019 Goods v. Wasco CA State Pending. Prison, U.S. District Court, 14 Eastern District (Sacramento), Case No. 2:19-CV-01859- 15 DMC 09/16/2019 Goods v. Wasco CA State The Court issued an Order to Show 16 Prison, U.S. District Court, Cause why the action should not be Eastern District, Case No. 1:19- dismissed [Dkt. No. 8]. 17 CV-01318-JLT 18 19 (See Doc. 20 at 3-4). Defendant argues that “based on the above cases, Goods’ IFP status should be 20 revoked and the Complaint dismissed.” (Id. at 5) 21 A. Whether Plaintiff has Three Strikes 22 The Ninth Circuit determined that “if defendants challenge a prisoner- plaintiff’s IFP status, 23 then the initial production burden rests with the defendants. Thus, when challenging a prisoner's IFP 24 status, the defendants must produce documentary evidence that allows the district court to conclude 25 that the plaintiff has filed at least three prior actions that were dismissed because they were frivolous, 26 malicious or failed to state a claim.” Andrews, 398 F.3d at 1120 (internal quotation marks omitted). 27 To determine whether an action qualifies as a strike under Section 1915, the Court must perform a 28 “careful evaluation of the order dismissing an action, and other relevant information,” to determine 1 whether the action was dismissed because it was frivolous, malicious, or failed to state a claim.” 2 Andrews, 398 F.3d at 1121. Accordingly, the Court has reviewed each of the actions identified above 3 to determine whether the case should count as a strike.2 4 1. Actions that remain open 5 As an initial matter, the Court notes a few of the actions identified above by Defendant remain 6 open. Specifically, although Defendant asserts Goods v. Bakersfield Police Department, U.S. District 7 Court, Eastern District, Case No. 1:19- CV-00663-DAD-JLT was dismissed “for failure to state a 8 claim” (Doc. 20 at 3), the action remains open. Instead, the Court has only issued Findings and 9 Recommendations that the complaint be dismissed without prejudice for failure to state a claim that 10 invokes this Court’s jurisdiction. (See Case No. 1:19- CV-00663-DAD-JLT, Doc. 10) The Findings 11 and Recommendations have yet to be addressed by the Court, and as such the case has not reached a 12 disposition that may count as a strike. See Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011) 13 (“a dismissal must be final before it counts as a ‘strike’ for § 1915(g) purposes”). 14 In addition, Goods v. Wasco CA State Prison, Case No. 2:19-CV-1859-DMC was transferred 15 from the Sacramento Division of the Eastern District Court on September 20, 2019; and it was 16 renumbered for the Fresno Division as Case No. 1:19-cv-1318-JLT. Although the Court issued an 17 order for Plaintiff to show cause why the action should not be dismissed as duplicative, the action 18 remains pending. Thus, neither Case No. 2:19-CV-1859-DMC nor Case No. 1:19-cv-1318-JLT 19 identified in Defendant’s table above qualify as strikes under Section 1915(g). 20 2. Whether the habeas petition counts as a strike 21 Defendant observes that the Court dismissed Plaintiff’s Writ of Habeas Corpus without 22 prejudice in Case No. 1:19-CV-0505-LJO-SAB-HC. (Doc. 20 at 3) In general, “dismissed habeas 23 petitions do not count as strikes under § 1915(g).” See Andrews, 398 F.3d at 1122; see also Naddi v. 24 Hill, 106 F.3d 275, 277 (9th Cir. 1997) (“PLRA’s revised [in] forma pauperis provisions relating to 25 26 2 The Court may take notice of facts that are capable of accurate and ready determination by resort to sources 27 whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir. 1993). Judicial notice may be taken of the court’s own records. Mullis v. United States Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D. Cal. 1978), aff'd 645 F.2d 699 (9th 28 Cir. 1981); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989); Rodic v. Thistledown Racing Club, 1 prisoners do not apply to habeas proceedings”). The Court explained that the language of Section 2 1915(g) “does not encompass habeas petitions,” because “Congress intended § 1915(g) to address civil 3 rights and prison condition cases, not habeas petitions.” Andrews, 398 F.3d at 1122. However, the 4 Ninth Circuit recognized: 5 [S]ome habeas petitions may be little more than 42 U.S.C. § 1983 actions mislabeled as habeas petitions so as to avoid the penalties imposed by 28 U.S.C. § 1915(g). In such 6 cases, the district court may determine that the dismissal of the habeas petition does in fact count as a strike for purposes of § 1915(g). 7 8 Andrews, 398 F.3d at 1123 n.12. The Court likewise acknowledged that “that the opposite can also be 9 true,” as “a habeas petition can be mislabeled as a § 1983 claim (either inadvertently, or as a strategy 10 to avoid the significant substantive hurdles of [the] habeas jurisprudence).” El-Shaddai v. Zamora, 11 833 F.3d 1036, 1047 (9th Cir. 2016). Under such circumstances, the Court explained a “mislabeled 12 habeas petition should be considered such for purposes of the PLRA, and that it should not count as a 13 strike.” Id. Thus, a court must review the “nature of the relief sought” to determine whether a petition 14 sounds in habeas or “is analogous to the typical suits brought under 42 U.S.C. § 1983.” See Andrews, 15 398 F.3d at 1122 (citing In re Nagy, 89 F.3d 115, 117 (2d Cir. 1996)). 16 On April 19, 2019, Plaintiff filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 17 2254 seeking to challenge his 2018 convictions for second-second-degree commercial burglary, 18 attempted second-degree commercial burglary, and misdemeanor possession of a controlled substance. 19 (Case No. 1:19-cv-00505-LJO-SAB, Doc. 1) Plaintiff requested that the charges be reduced from 20 felonies to misdemeanors. (Id., Doc. 1 at 15) The Court reviewed the petition observed that Plaintiff 21 “may have failed to exhaust the claims that he [appeared] to raise,” because there was no information in 22 the petition regarding whether the claims were presented to the California Supreme Court. (Id., Doc. 4 23 at 2) Thus, Plaintiff was ordered to show cause why the petition should not be dismissed for failure to 24 exhaust his state remedies and for failure to identify his grounds for relief. (Id., Doc. 4 at 3) Plaintiff 25 failed to respond to the Court’s order and his petition was “dismissed without prejudice for failure to 26 exhaust state judicial remedies” on August 15, 2019. (Id., Doc. 10 at 3 (emphasis omitted)). 27 Because Plaintiff clearly sought to challenge his conviction in the original petition and the relief 28 requested related to a habeas proceeding rather than civil rights litigation, the action does not count as a 1 strike under Section 1915(g). See El-Shaddai, 833 F.3d at 1047 (explaining a habeas petition 2 “challenging the fact or duration of the plaintiff’s sentence” that is dismissed for failure to exhaust state 3 remedies “should not count as a strike”). 4 3. Goods v. Wasco CA State Prison, Case No. 1:19-CV-0661-AWI-SAB 5 Plaintiff filed a complaint for violations of his civil rights against Wasco State Prison, asserting 6 that he had developed cancer from the black and green mold on the walls in the prison. (See Case No. 7 1:19-CV-0661-AWI-SAB, Doc. 1) On the complaint form, Plaintiff indicated that he had not filed a 8 grievance concerning the facts related to the complaint but did not explain whether there was a 9 grievance procedure available at the institution. (See id., at 2) The Court issued an order to Plaintiff to 10 show cause why the action should not be dismissed without prejudice for his failure to exhaust 11 administrative remedies. (Id., Doc. 8) After Plaintiff failed to respond to the order, the Court 12 recommended Plaintiff’s complaint be dismissed for failure to obey the Court’s order and failure to 13 prosecute. (Id., Doc. 10) Thereafter, Plaintiff filed a motion to amend the complaint, but did not 14 address whether the administrative remedies were exhausted. Consequently, the Court dismissed his 15 complaint without prejudice for failure to exhaust the administrative remedies. (Id., Doc. 17) 16 Defendants have offered no analysis as to whether this dismissal should count as a strike. (See Doc. 20 17 at 3-4) 18 Pursuant to the PLRA, a plaintiff must exhaust all administrative remedies prior to filing a 19 complaint against prison officials. See Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014). Although 20 failure to exhaust administrative remedies is an affirmative defense, “a complaint may be subject to 21 dismissal under Rule 12(b)(6) when an affirmative defense . . . appears on its face.” El-Shaddai, 833 22 F.3d at 1043 (quoting Jones v. Bock, 549 U.S. 199, 215 (2007)). Thus, when a plaintiff’s failure to 23 exhaust is “clear from the face of the complaint,” the dismissal may be counted as a strike under the 24 PLRA. Id.; see also Hammler v. Compose, 2019 U.S. Dist. LEXIS 154434, *4 (E.D. Cal. Sept. 10, 25 2019) (finding an action counted as a strike under Section 1915(g) where it was dismissed for the 26 claimant’s failure to exhaust administrative remedies). Because Plaintiff clearly indicated that he had 27 not exhausted administrative remedies in his complaint, the Court finds the dismissal of this action 28 counts as a strike under Section 1915(g.) 1 /// 2 4. Goods v. The County of Kern, Case No. 1:19-CV-0664-DAD-JLT 3 Defendant observes that this action was dismissed, asserting the dismissal was “for failure to 4 state a claim upon which relief can be granted.” (Doc. 20 at 3) In the complaint, Plaintiff asserted that 5 he was wrongfully sentenced in a criminal proceeding, and sought monetary damages under 42 U.S.C. 6 § 1983. (See Case No. 1:19-CV-0664-DAD-JLT, Doc. 1) The Court reviewed the allegations, and 7 observed that “[a] civil rights complaint under Section 1983 cannot proceed when ‘a judgment in favor 8 of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 9 complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has 10 already been invalidated.’” (Id., Doc. 4 at 4, quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)) 11 Because Plaintiff’s conviction was not invalidated and he “challenge[d] the validity of his sentence, 12 including the duration of his incarceration,” the Court determined Plaintiff’s claim was barred by Heck. 13 (Id., Doc. 4 at 5) Further, the Court declined to convert the civil rights action to a petition for habeas 14 corpus because Plaintiff had not exhausted his state court remedies. (Id., Doc. 4 at 5) Thus, Plaintiff’s 15 complaint was “dismissed without prejudice for lack of subject matter jurisdiction.” (Id., Doc. 4 at 6; 16 see also Doc. 9 at 2) (emphasis omitted) 17 Significantly, the Ninth Circuit has distinguished between dismissals for failure to state a claim 18 and dismissals for lack of subject matter jurisdiction. See In Moore v. Maricopa Cty. Sheriff’s Office, 19 657 F.3d 890 (9th Cir. 2011). The Court observed that the lack of subject matter jurisdiction is not a 20 dismissal on the grounds enumerated in Section 1915(g). Id. (“[n]owhere does the three-strikes rule 21 mention ‘lack of subject matter jurisdiction”); see also Hoffman v. Pulido, 982 F.3d 1147, 1152 (9th 22 Cir. 2909). Thus, where a case is dismissed in part, for lack of subject matter jurisdiction, the dismissal 23 may not be counted as a strike. Hoffman, 982 F.3d at 1152. The Court explained that “to qualify as a 24 strike for § 1915(g), a case as a whole, not just some of its individual claims, must be dismissed for a 25 qualifying reason. Id. Thus, “even if certain claims in a prisoner's lawsuit are dismissed as frivolous or 26 malicious, or for failing to state a claim, that dismissal will not qualify as a PLRA strike if there are 27 other claims that are either not dismissed or are dismissed for different, non-enumerated reason.” Id. 28 1 Further, the Court determined that “[a]pplication of the Heck bar does support a strike… when the Heck 2 deficiency is plain from the face of the complaint and plaintiff therefore could not possibly secure 3 relief.” Green v. CDCR, 2018 WL 3089395 at *4 (E.D. Cal. June 21, 2018) (citing Washington v. Los 4 Angeles County Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016). 5 The Court found Plaintiff failed to state a claim because the relief requested was barred under 6 Heck, and this Court’s subject matter jurisdiction was not invoked. Because Plaintiff “could not 7 possibly secure relief” and the dismissal was, in part, due to lack of a subject matter jurisdiction, the 8 dismissal in Case No. 1:19-CV-0664-DAD-JLT may not be counted as a strike. See Hoffman, 982 F.3d 9 at 1152; Green, 2018 WL 3089395 at *4. 10 5. Conclusion 11 For the foregoing reasons, the Court finds Defendant failed to carry her burden to “produce 12 documentary evidence that … the plaintiff has filed at least three prior actions that were dismissed 13 because they were frivolous, malicious or failed to state a claim.” See Andrews, 398 F.3d at 1120. 14 Although Plaintiff was assessed a strike by the Central District in Case No. 2:19-CV-06543-CJC-GJS, 15 Defendant does not demonstrate two additional cases filed in the Eastern District should be counted as 16 strikes. Thus, the Court recommends the motions to revoke Plaintiff’s in forma pauperis status and 17 dismiss the complaint, on grounds that he had more than three strikes under Section 1915(g), be 18 DENIED. 19 B. Status as a Vexatious Litigant 20 As noted above, under California law, a vexatious litigant is defined as a person who has filed at 21 least five actions, other than those in small claims courts, that were “finally determined adversely to the 22 person” or “repeatedly relitigates or attempts to relitigate” the same causes of action against the same 23 defendants. See Cal. Code Civ. Pro. § 391(b). Here, Defendant has offered no analysis as to whether 24 Plaintiff meets this definition of a vexatious litigant. 25 Regardless, the Court notes that Defendant has identified only three civil actions that were 26 dismissed by the Court, of which two may be counted as strikes under the PLRA. Further, Defendant 27 fails to demonstrate that Plaintiff has repeatedly attempted to relitigate the same causes of action 28 against the same defendants. Consequently, the Court finds Defendant has failed to demonstrate 1 Plaintiff is a vexatious litigant and recommends Defendant’s motion to find Plaintiff a vexatious 2 litigant, revoke the IFP status, and dismiss the complaint be DENIED. 3 V. Findings and Recommendations 4 Based upon the foregoing, the Court finds Defendant fails to “produce documentary evidence 5 that … the plaintiff has filed at least three prior actions” that qualified as strikes under the PLRA. See 6 Andrews, 398 F.3d at 1120. In addition, Plaintiff is not a vexatious litigant within the meaning of Cal. 7 Code Civ. Pro. § 391(b). 8 Accordingly, the Court RECOMMENDS: Defendant’s motion to revoke Plaintiff’s in forma 9 pauperis status and dismiss the First Amended Complaint (Doc. 20) be DENIED. 10 These Findings and Recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 12 Rules of Practice for the United States District Court, Eastern District of California. Within fourteen 13 days after being served with these Findings and Recommendations, any party may file written 14 objections. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendations.” Any reply to the objections shall be filed within seven days of the date of service 16 to the objections. The parties are advised that failure to file objections within the specified time may 17 waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); 18 Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th Cir. 2014). 19 20 IT IS SO ORDERED. 21 Dated: October 26, 2019 /s/ Jennifer L. Thurston 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28