(PC)Allen v. Krantz ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN ALLEN, No. 1:22-cv-00621-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 R. KRANTZ, et al., PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 5, 6) 16 17 Plaintiff Kevin Allen is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint on May 23, 19 2022 (Doc. No. 1) and an application to proceed in forma pauperis on May 31, 2022 (Doc. No. 20 5). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. 21 § 636(b)(1)(B) and Local Rule 302. 22 On June 2, 2022, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff’s applications to proceed in forma pauperis be denied and that he be 24 required to pay the $402.00 filing fee in full to proceed with this action because: (1) he is subject 25 to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations of plaintiff’s complaint 26 do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. No. 27 6 at 2–5.) Those findings and recommendations were served on plaintiff and contained notice 28 that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 5.) On 1 June 23, 2022, plaintiff filed objections to the pending findings and recommendations. (Doc. No. 2 9.) 3 In his objections to the pending findings and recommendations, plaintiff contends that he 4 is not subject to the three strikes bar under § 1915(g) because three of the four orders relied upon 5 in the findings and recommendations as strikes do not qualify as strike dismissals under that 6 statute. (Doc. No. 9 at 2–3.) Each of the dismissal orders relied upon in the findings and 7 recommendations is addressed in turn below. 8 First, the findings and recommendations rely upon the dismissal order in Kelvin1 Allen v. 9 T. Scott, et al., No. 1:10-cv-00183-GSA (E.D. Cal. Sept. 9, 2011) as a prior strike. (Doc. No. 6 at 10 2.) A review of the docket in that case establishes that the action was dismissed “for failure to 11 state a claim upon which relief can be granted.” (Scott, Doc. No. 15 at 2.) That dismissal order 12 was signed by a magistrate judge, and plaintiff had consented to magistrate judge jurisdiction in 13 that action. (Scott, Doc. No. 5.) The United States Court of Appeals for the Ninth Circuit has 14 clarified that although “a magistrate judge lacks the authority to dismiss a case unless all parties 15 have consented to proceed before the magistrate judge,” a prisoner plaintiff “cannot escape the 16 consequences of [a] prior judgment [] through an untimely collateral attack.” Hoffman v. Pulido, 17 928 F.3d 1147, 1149–1150 (9th Cir. 2019) (citing Williams v. King, 875 F.3d 500, 504-05 (9th 18 Cir. 2017)); see also Jones v. Alameda Dist. Attorney’s Office, No. 19-cv-04428-RS-PR, 2019 19 WL 4845694, at *1, n.2 (N.D. Cal. Oct. 1, 2019) (citing Hoffman and counting dismissal orders 20 signed by magistrate judges as strikes under § 1915(g)). Accordingly, the dismissal of the Scott 21 action, qualifies as a strike against plaintiff under 28 U.S.C. § 1915(g). Indeed, in his objections, 22 plaintiff concedes that the dismissal order in Scott qualifies as a strike against him under 23 § 1915(g). (Doc. No. 9 at 2.) 24 ///// 25 1 In the complaint that plaintiff filed in 2010 to initiate the Allen v. T. Scott action, plaintiff had stated that his first name was “Kelvin” and that his inmate number was K41879. (T. Scott, Doc. 26 No. 1.) In the complaint plaintiff filed to initiate the pending action, plaintiff stated that his first 27 name is “Kevin,” and his inmate booking number is K41879. (Doc. No. 1.) Despite the difference in the first name provided, plaintiff does not dispute that he was the plaintiff in the 28 Scott action. 1 Second, the findings and recommendations rely upon the dismissal in Kevin Allen v. L. 2 Tobin, et al., No. 3:15-cv-01075-JCS (N.D. Cal. June 27, 2016) as a prior strike. (Doc. No. 6 at 3 2–3.) A review of the docket in that case establishes that on June 27, 2016, the assigned 4 magistrate judge issued an order granting the defendants’ motion to dismiss plaintiff’s complaint 5 because he had failed to state cognizable claims. (Tobin, Doc. No. 23.) Plaintiff was granted 6 leave to file an amended complaint. (Id. at 4.) However, plaintiff did not file an amended 7 complaint, and on September 27, 2016, the magistrate judge issued an order dismissing that 8 action due to plaintiff’s failure “to respond to the Court’s order, and for failure to prosecute.” 9 (Tobin, Doc. No. 28 at 1.) Although the pending findings and recommendations state that Tobin 10 was dismissed because plaintiff had failed to state a claim, the undersigned notes that the 11 dismissal order in Tobin did not state plaintiff’s failure to state a claim as a ground upon which it 12 was dismissing the case without prejudice. In addition, although the pending findings and 13 recommendations rely on the decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), the 14 dismissal order issued by the magistrate judge in Tobin does not qualify as a strike under 15 § 1915(g) because the district court did not dismiss the complaint for failure to state a claim. See 16 Harris, 863 F.3d at 1143 (“Accordingly, we hold that when (1) a district court dismisses a 17 complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) 18 the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under 19 § 1915(g).”) (emphasis added). 20 Third, the findings and recommendations rely upon the dismissal in Kevin Allen v. V. 21 Bentacourt, et al., No. 1:18-cv-01187-DAD-GSA (E.D. Cal. Nov. 25, 2020) as a prior strike. 22 (Doc. No. 6 at 3.) A review of the docket in that case establishes that the action was dismissed by 23 the assigned district judge “due to plaintiff’s failure to state a claim upon which relief may be 24 granted under § 1983 and his failure to obey the court’s order.” (Bentacourt, Doc. No. 37 at 2.) 25 Accordingly, the dismissal of that case counts as a strike against plaintiff under 28 U.S.C. 26 § 1915(g). 27 Fourth, and finally, the findings and recommendations rely upon the dismissal in Kevin 28 Allen v. Dr. Lopez, et al., No. 1:19-cv-00154-DAD-BAM (E.D. Cal. July 1, 2019) as a prior 1 | strike. (Doc. No. 6 at 3.) A review of the docket in that case establishes that the action was 2 || dismissed by the assigned district judge “due to plaintiff's failure to state a claim upon which 3 | relief may be granted.” (Dr. Lopez, Doc. No. 13 at 2.) Accordingly, the dismissal of that case 4 || counts as a strike against plaintiff under 28 U.S.C. § 1915(g). 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C©), the undersigned has 6 || conducted a de novo review of the case. Having carefully reviewed the entire file, including 7 || plaintiffs objections, the undersigned concludes that three of the four dismissal orders relied 8 || upon in the findings and recommendations as strikes under § 1915(g) do indeed qualify as strikes 9 || under that statute. Thus, the undersigned agrees that plaintiff has incurred three strikes under 10 | § 1915(g), and on that basis, adopts the magistrate judge’s recommendation that plaintiffs 11 || application to proceed in forma pauperis be denied. 12 Accordingly, 13 1. The findings and recommendations issued on June 2, 2022 (Doc. No. 6) are 14 adopted; 15 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 5) is denied; 16 3. Within thirty (30) days from the date of service of this order, plaintiff shall pay the 17 $402.00 filing fee in full in order to proceed with this action; 18 4. Plaintiff is forewarned that failure to pay the filing fee within the specified time 19 will result in the dismissal of this action; and 20 5. This matter is referred back to the assigned magistrate judge for further 21 proceedings consistent with this order. 22 | IT IS SO ORDERED. ee Dated: _ July 25, 2022 Vila A Dred 24 UNITED STATES DISTRICT JUDGE 25 26 27 28