Malone v. Baca-Cook ( 2024 )

2 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 3 4 Domonic R. Malone, Case No. 2:24-cv-00745-CDS-BNW 5 Plaintiff Order Vacating Parts of July 11, 2024, Order v. 6 7 Heather Baca-Cook, et al., 8 Defendants 9 10 This pro se civil-rights action under 42 U.S.C. § 1983 was brought by state prisoner 11 Domonic Malone on behalf of himself and two other inmates. ECF No. 1-1. On July 11, 2024, I 12 denied Malone’s motion for class certification; dismissed all plaintiffs from this action without 13 prejudice except Malone; denied Malone’s application to proceed in forma pauperis (IFP) on 14 grounds that he had amassed over three strikes under the Prison Litigation Reform Act (PLRA), 15 but not met 28 U.S.C. § 1915(g)’s exception; and gave Malone until August 12, 2024, to pay the full 16 $405 filing fee if he wanted to proceed with this action. Order, ECF No. 3. For the reasons 17 discussed below, I vacate the parts of that order finding that the district courts’ dismissals of 18 Malone II and Malone III constitute strikes under the PLRA and denying Malone’s IFP application 19 on three-strike grounds, and I reinstate Malone’s IFP application. 20 I. Discussion 21 In denying Malone’s IFP application, I found that the district court’s May 14, 2021, 22 dismissal of Malone v. Nevada Dep’t of Corr., Case No. 2:20-cv-00504-GMN-EJY (D. Nev.) (identified 23 as Malone II), constituted a strike under the PLRA. ECF No. 3 at 2–3. In making this finding, I 24 overlooked that the dismissal was mixed. Some claims were dismissed for failure to state a claim 25 for relief. Malone II, ECF No. 9 at 4–7. But other claims were dismissed because they were asserted 26 for the first time in Malone’s first amended complaint and did not relate back to his original 27 complaint. Id. at 7–8. Courts “assess a PLRA strike only when the ‘case as a whole’ is dismissed for 28 a qualifying reason under the Act.” Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 2 context constitutes a strike. So out of an abundance of caution, I vacate my finding that the 3 dismissal of Malone II constitutes a strike under the PLRA. 4 Additionally in denying Malone’s IFP application, I found that the district court’s June 5 12, 2023, dismissal of Malone v. State of Nevada, Case No. 2:23-cv-00217-APG-NJK (D. Nev.) 6 (identified as Malone III), constituted a strike under the PLRA. ECF No. 3 at 3. In making this 7 finding, I mistakenly determined it was a full dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). 8 But the complaint in Malone III sought more than damages; it also asked for Malone’s immediate 9 release from custody. Malone III, ECF No. 10 at 4. Because the part of the complaint in Malone III 10 seeking immediate release from custody sounded in habeas, that action was not fully dismissed 11 under Heck. See Washington, 833 F.3d at 1056–57. Accordingly, I vacate my finding that the dismissal 12 of Malone III constitutes a strike under the PLRA. 13 The upshot of this analysis is that Malone had amassed only two strikes under the PLRA 14 when he initiated this action, not four as I previously found. This necessarily means that my 15 reason for denying Malone’s IFP application is no longer applicable. Accordingly, I also vacate my 16 decision denying Malone’s IFP application and the corresponding deadline for him to pay the full 17 $405 filing fee if he wants to proceed with this action. 18 II. Conclusion 19 It is therefore ordered that the July 11, 2024, order (ECF No. 3) is vacated in part as to: 20 (1) the finding that the district court’s May 14, 2021, dismissal of Malone v. Nevada Dep’t of Corr., 21 Case No. 2:20-cv-00504-GMN-EJY, constitutes a strike under the PLRA; (2) the finding that the 22 district court’s June 12, 2023, dismissal of Malone v. State of Nevada, Case No. 2:23-cv-00217-APG- 23 NJK, constitutes a strike under the PLRA; (3) the decision denying Malone’s application to 24 proceed in forma pauperis; and (4) the deadline for Malone to pay the $405 filing fee if he wants to 25 proceed with this action. 26 It is further ordered that all other aspects of the July 11, 2024, order (ECF No. 3) remain 27 in force. 28 1 Malone is advised that because he filed a complete application to proceed in forma pauperis 2 || (ECF No. 1), the court will screen his complaint (ECF No. 1-1) in the ordinary course. 3 The Clerk of the Court is directed to reinstate plaintiff Domonic Malone’s application to 4 || proceed in forma pauperis (ECF No. 1). /, ) 5 Dated: July 22, 2024 LZ ( 6 the Cristinad). Silva 7 Una District Judge 3 □ 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28