(PC) Garland v. Allison ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHAUN DARNELL GARLAND, No. 2:21-cv-00796-DAD-DMC (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING 14 KATHLEEN ALLISON, et al., DEFENDANTS’ MOTION TO REVOKE IN FORMA PAUPERIS STATUS 15 Defendants. (Doc. Nos. 57, 58, 80) 16 17 Plaintiff Shaun Darnell Garland is a state prisoner proceeding pro se in this civil rights 18 action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On August 18, 2023, the assigned magistrate judge issued amended findings and 21 recommendations recommending that defendants’ requests for judicial notice (Doc. Nos. 58, 59) 22 and motion to revoke plaintiff’s in forma pauperis status (Doc. No. 57) be granted. (Doc. No. 23 80.)1 In those amended findings and recommendations the magistrate judge concluded that the 24 prior dismissal orders in Garland v. Skribner, No. 1:06-cv-00198 (E.D. Cal.); Garland v. 25 1 On June 6, 2023, the magistrate judge had issued findings and recommendations recommending that defendants’ motion to revoke plaintiff’s in forma pauperis status be denied. (Doc. No. 70.) 26 However, upon realizing that he had not considered defendants’ supplemental brief and request 27 for judicial notice that had been filed on October 27, 2022, the magistrate judge vacated those findings and recommendations and then issued the pending amended findings and 28 recommendations after considering defendants’ supplemental filing. (Doc. No. 80 at 1, n.1, 4.) 1 Hoffman, No. 2:15-cv-02766 (C.D. Cal.); and Garland v. Cate, No. 2:12-cv-3095 (E.D. Cal.) 2 each constituted strikes under 28 U.S.C. § 1915(g)2 and the allegations of plaintiff’s complaint 3 did not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 4 No. 80 at 3–4); see Andrews v. Cervantes, 493 F.3d 1047, 1051−55 (9th Cir. 2007). The 5 magistrate judge also recommended that this action be dismissed without prejudice to plaintiff re- 6 filing upon pre-payment of the filing fee by plaintiff. (Id. at 5.) 7 The findings and recommendations were served on plaintiff and contained notice that any 8 objections thereto were to be filed within fourteen (14) days after service. (Id.) On August 28, 9 2023, the court received plaintiff’s timely objections to the pending findings and 10 recommendations. (Doc. No. 81.) On September 8, 2023, defendants timely filed their response 11 to plaintiff’s objections. (Doc. No. 82.) 12 In his objections plaintiff argues that Garland v. Hoffman, No. 2:15-cv-02766 (C.D. Cal.) 13 was dismissed as barred by the applicable statute of limitations and suggests that it should 14 therefore not be counted as a strike under § 1915(g). (Doc. No. 81 at 2-4) Plaintiff also argues 15 that in Garland v. Skribner, No. 1:06-cv-00198 (E.D. Cal.) five of his six claims were dismissed 16 for failure to state a cognizable claim but that the sixth claim was dismissed based upon improper 17 venue. (Id. at 4.) According to plaintiff because of the presence of the claim dismissed for 18 improper venue, it cannot be said that the entire case was dismissed for a qualifying reason under 19 § 1915(g) and that such a dismissal does not count as a prior strike. (Id. at 5) (citing Hoffman v. 20 Pulido, 928 F.3d 1147, 1151-52 (9th Cir. 2019)). 21 As defendants point out in their response to plaintiff’s objections, the Ninth Circuit has 22 held that dismissal orders based upon a finding that an action is barred by the applicable statute of 23 limitations do count as strikes under 28 U.S.C. § 1915(g). (Doc. No. 82 at 2–3) (citing Belanus v. 24 Clark, 796 F.3d 1021, 1030 (9th Cir. 2015) and Williams v. Just, 696 F. App’x 261, 261 (9th Cir. 25 2 The magistrate judge also concluded that two other dismissal orders upon which defendants’ relied did not constitute strikes under § 1915(g) because those dismissals were based upon 26 plaintiff’s voluntary dismissal or because the case was duplicative of another filed by plaintiff. 27 (Doc. No. 80 at 3-4.) Nonetheless, the magistrate judge concluded that revocation of plaintiff’s in forma pauperis status was appropriate based upon the three prior dismissals which properly 28 counted as strikes. (Id.) 1 Aug. 17, 2017))3; see also Williams v. Allison, No. 2:21-cv-0051-CKD, 2021 WL 1600122, at *1 2 (E.D. Cal. Apr. 23, 2021) (“[T]he Ninth Circuit Court of Appeal has already affirmed the 3 judgment in two separate district court cases finding that these same actions [dismissals at the 4 screening stage as barred by the statute of limitations] constituted ‘strikes.’”). Until or unless the 5 Ninth Circuit reconsiders the issue, its decisions in the cited cases are binding on this district 6 court. The court also does not find plaintiff’s new argument, improperly advanced for the first 7 time in his objections, regarding the dismissal order in Garland v. Skribner to be persuasive. As 8 plaintiff concedes the one claim that was improperly joined was dismissed without prejudice to its 9 filing in the clearly proper venue. (Doc. No. 81 at 4.) Plaintiff’s five substantive claims that were 10 properly joined and filed in the U.S. District Court for the Eastern District of California were 11 dismissed for failure to state a cognizable claim. (Id.)4 That order of dismissal is properly 12 counted as a strike under § 1915(g). See Dorsey v. Varga, 55 F.4th 1094, 1107 (7th Cir. 2022) 13 (“Assessing whether joinder is proper before resolving the merits ensures that, regardless of the 14 outcome of a case, the plaintiff pays the proper number of fees under § 1915(b) and receives the 15 proper number of strikes, if any, under § 1915(g).”) 16 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 17 conducted a de novo review of the case. Having carefully reviewed the entire file, including 18 plaintiff’s objections and defendants’ response, the undersigned concludes that the findings and 19 recommendations are supported by the record and proper analysis.5 20 ///// 21 ///// 22 23 3 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 36–3(b). 24 4 See Lopez v. Allison, 538 F. Supp. 3d 946, 949 (N.D. Cal. 2021). 25 5 However, the undersigned declines to adopt the recommendation that the action be dismissed at 26 this time without prejudice to its re-filing upon plaintiff’s pre-payment of the filing fee. Instead, 27 the court will follow the more customary course of providing plaintiff thirty days to pay the filing fee for this action in full and with notice that his failure to do so will result in an order dismissing 28 this case. 1 Accordingly, 2 1. The amended findings and recommendations issued on August 18, 2023 (Doc. No. 3 82) are adopted; 4 2. Defendants’ requests for judicial notice (Doc. Nos 58, 59) are granted; 5 3. Defendants’ motion to revoke plaintiffs in forma pauperis status (Doc. No. 57) is 6 granted; 7 4. Within thirty (30) days from the date of service of this order, plaintiff shall pay the 8 $402.00 filing fee in full in order to proceed with this action; 9 5. Plaintiff is forewarned that failure to pay the filing fee within the specified time 10 will result in the dismissal of this action; and 11 6. This matter is referred back to the assigned magistrate judge for further 12 proceedings consistent with this order. 13 IT IS SO ORDERED. | pated: _ September 12, 2023 Da A. 2, ye 15 DALE A. DROZD 6 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28