(PC) Garland v. Jones ( 2024 )

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. 2:22-cv-01494-EFB (PC) 12 Plaintiff, 13 v. ORDER 14 GENA JONES, et al., 15 Defendants. 16 17 18 Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 19 U.S.C. § 1983. ECF No. 1. On December 12, 2022, the undersigned granted plaintiff’s request to 20 proceed in forma pauperis. ECF No. 6. On July 12, 2023, the undersigned ordered service of the 21 amended complaint on four defendants: Bolina, Gates, The California Department of Corrections 22 and Rehabilitation (CDCR), and California Correctional Health Care Services. ECF No. 12. 23 Now before the court is defendants’ October 30, 2023 motion to revoke plaintiff’s in 24 forma pauperis status on the ground that plaintiff is a “three strikes” inmate under 28 U.S.C. § 25 1915(g). ECF No. 22. Plaintiff has filed an opposition, and defendants have filed a reply.1 ECF 26 1 Plaintiff has also filed an unauthorized sur-reply. ECF No. 23. Defendants move to 27 strike it; plaintiff opposes the motion. ECF Nos. 24 & 25. Local Rule 230(l), governing prisoner actions, does not provide for the filing of a sur-reply. Moreover, Local Rule 230(m) provides that 28 “[a]fter a reply is filed, no additional memoranda, papers, or other materials may be filed” except 1 Nos. 21 & 22. For the reasons set forth below, the motion to revoke plaintiff’s in forma pauperis 2 status must be granted and plaintiff is required to pay the filing fee or face dismissal of this 3 action. 4 I. Motion to Revoke IFP Status 5 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement 6 and prosecution of any suit without prepayment of fees by a person who submits an affidavit 7 indicating that the person is unable to pay such fees. However, 8 [i]n 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, 9 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 10 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 11 prisoner is under imminent danger of serious physical injury. 12 28 U.S.C. § 1915(g). 13 In forma pauperis status may be acquired and lost during the course of litigation. 14 Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by 15 Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g)) 16 makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma 17 pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination 18 thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999). Section 19 1915(g) should be used to deny a prisoner’s in forma pauperis status only upon a determination 20 that each action reviewed (as a potential strike) is carefully evaluated to determine that it was 21 dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 22 1121 (9th Cir. 2005). Defendant has the burden to “produce documentary evidence that allows 23 the district court to conclude that the plaintiff has filed at least three prior actions . . . dismissed 24 because they were ‘frivolous, malicious or fail[ed] to state a claim.’” Id., at 1120, quoting 25 § 1915(g). Once defendants meet their initial burden, it is plaintiff’s burden to explain why a 26 prior dismissal should not count as a strike. Id. If the plaintiff fails to meet that burden, 27 for two exceptions, neither of which apply here. Thus, defendants’ motion to strike will be 28 granted. 1 plaintiff’s IFP status should be revoked under § 1915(g). Id. 2 In Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011), the Ninth Circuit found 3 that “a dismissal must be final before it counts as a ‘strike’ for § 1915(g) purposes.” Thus, “a 4 district court’s dismissal of a case does not count as a ‘strike’ under § 1915(g) until the litigant 5 has exhausted or waived his opportunity to appeal. This means a dismissal ripens into a ‘strike’ 6 for § 1915(g) purposes on the date of the Supreme Court’s denial or dismissal of a petition for 7 writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ 8 of certiorari expired, if he did not.” Id. at 1100 (internal quotation omitted). “If a prisoner does 9 not appeal a dismissal, the dismissal counts as a ‘strike’ from the date when his time to file a 10 direct appeal expired.” Id., n.6. 11 II. Discussion 12 Defendants contend that plaintiff’s litigation history shows that he has at least three prior 13 strikes2: 14 1. Garland v. Scribner, No. 1:06-cv-00198-OWW-GSA-PC (E.D. Cal.) (dismissed on 15 December 23, 2008 for failure to state a claim). Defs. Request for Judicial (RJN) Exhs. 2 16 & 3. This dismissal has been previously determined to constitute a strike. Garland v. 17 Allison, No. 2:21-cv-0796-DAD-DMC-P (E.D. Cal.) (August 18, 2023 Order granting 18 motion to revoke IFP status at 3). 19 2. Garland v. Hoffman, No. 2:15-cv-02766 (C.D. Cal.) (dismissed on February 29, 2016 as 20 barred by the statute of limitations). RJN Exhs. 4 & 5. A dismissal for being time-barred 21 constitutes a strike. Belanus v. Clark, 796 F.3d 1021, 1028 (9th Cir. 2015). As in 22 Garland v. Scribner (see above), this dismissal has been previously determined to 23 constitute a strike. Garland v. Allison, No. 2:21-cv-0796-DAD-DMC-P (E.D. Cal.) 24 (August 18, 2023 order granting motion to revoke IFP status at 3). 25 3. Garland v. Cate, No. 2:12-cv-3095 KJM AC P (E.D. Cal.) (dismissed on July 31, 2013 26 2 Defendants’ request for judicial notice of the following cases is granted. See MGIC 27 Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986) (a court may take judicial notice of court records); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 28 1 for failure to state a claim). RJN Exhs. 6 & 7. Like the previous two cases, this dismissal 2 has been previously determined to constitute a strike. Garland v. Allison, No. 2:21-cv- 3 0796-DAD-DMC-P (E.D. Cal.) (August 18, 2023 order granting motion to revoke IFP 4 status at 3-4).3 5 In opposition to the motion to dismiss, plaintiff argues that the first of these three cases, 6 Garland v. Scribner, is not a strike because one claim added in the second amended complaint, 7 based on incidents at a different prison, was dismissed for lack of venue. ECF No. 21. However, 8 the undersigned concludes that the Garland v. Allison court was correct in determining that the 9 main basis for dismissal was failure to state a claim, and the case therefore counts as a strike. 10 Moreover, plaintiff’s allegations in the complaint do not satisfy the “imminent danger” exception. 11 Because the court concludes that plaintiff is a “three strikes” litigant, 12 IT IS HEREBY ORDERED that: 13 1. Defendants’ motion to strike the sur-reply (ECF No. 24) is GRANTED; 14 2. Defendants’ motion to revoke in pauperis status and dismiss this action (ECF No. 18) is 15 granted, in part, to the following extent: 16 3. Plaintiff’s in forma pauperis status is REVOKED pursuant to 28 U.S.C. § 1915(g); 17 4. The order granting plaintiff’s application to proceed in forma pauperis (ECF No. 6) is 18 VACATED; 19 5. The order directing the CDCR to make payments to the court from plaintiff's prison 20 trust account for payment of the filing fee for this action (ECF No. 7) is VACATED; 21 6. The Clerk of Court is directed to serve a copy of this order on: 22 (1) the Director of the CDCR; and 23 (2) the Financial Department, U.S. District Court, Eastern District of California, 24 Sacramento Division; 25 //// 26 //// 27 28 3 The court does not reach the remaining cases defendants contend are prior strikes. 1 7. Plaintiff shall submit, within 21 days from the date of this order, both the $350.00 2 || filing fee and the $55.00 administrative fee for a civil action; and 3 8. Plaintiffs failure to comply with this order will result in a recommendation that this 4 || action be dismissed. 6 | Dated: May 23, 2024 Jal bthigt LHEC_AV 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28