Palmer v. Woodford et al

Filing 64

ORDER Granting Plaintiff's Motion for Reconsideration 53 ; Striking Order Dismissing Action; Reinstating Plaintiff's In Forma Pauperis Status; and Deeming Defendants' Motion to Dismiss Resubmitted; ORDER Striking Motion for Reconsider ation 56 and Request for Judicial Notice as Duplicative 55 ; ORDER Denying Plaintiff's Request for Decision on Pending Motion as Moot 62 ; ORDER Directing the Clerk's Office to Serve a Copy of this Order on the Ninth Circuit, signed by District Judge Lawrence J. O'Neill on 8/4/11. CASE REOPENED.(Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WILL MOSES PALMER, III,

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Plaintiff,

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v.
JEANNE WOODFORD, et al.,

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CASE NO. 1:06-cv-00512-LJO-SMS PC
ORDER GRANTING PLAINTIFF’S MOTION
FOR RECONSIDERATION; STRIKING ORDER
DISMISSING ACTION; REINSTATING
PLAINTIFF’S IN FORMA PAUPERIS STATUS;
AND DEEMING DEFENDANTS’ MOTION TO
DISMISS RESUBMITTED

Defendants.
(ECF No. 53)

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ORDER STRIKING MOTION FOR
RECONSIDERATION AND REQUEST FOR
JUDICIAL NOTICE AS DUPLICATIVE

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(ECF No. 55, 56)
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ORDER DENYING PLAINTIFF’S REQUEST
FOR DECISION ON PENDING MOTION AS
MOOT

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(ECF No. 62)
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ORDER DIRECTING THE CLERK’S OFFICE
TO SERVE A COPY OF THIS ORDER ON
/ THE NINTH CIRCUIT

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I.

Procedural History

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Plaintiff Will Moses, Palmer, III (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. This action was filed on April 28, 2006. On March 22,

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2010, an order issued granting Defendants’ motion to revoke Plaintiff’s in forma pauperis status

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pursuant to 28 U.S.C. § 1915(g) and motion to dismiss, and this action was dismissed. (ECF No.

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51.) On April 8, 2010 and April 14, 2010, Plaintiff filed duplicate motions for reconsideration of
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the order dismissing the action and requests for judicial notice. (ECF Nos. 53, 54, 55, 56.) On April

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22, 2010, Plaintiff filed a notice of appeal. (ECF No. 57.) On May 25, 2010, the Ninth Circuit

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issued an order holding the appellate proceeding in abeyance pending resolution of Plaintiff’s

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motions for reconsideration. (ECF No. 61.) On November 16, 2010, Plaintiff filed a request for

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decision on the pending motion for reconsideration. (ECF No. 62.) On July 26, 2011, this action

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was reassigned to the undersigned. (ECF No. 63.)

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Plaintiff has filed duplicate motions for reconsideration and the motion and request for

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judicial notice filed April 14, 2010, are stricken from the record as duplicative. Additionally, based

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upon the issuance of this order, Plaintiff’s motion requesting a decision on the pending motion shall

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be denied as moot.

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II.

Legal Standard

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Pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, “[o]n motion and just terms,

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the court may relieve a party . . .from a final judgment, order, or proceeding for the following

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reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence .

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. . (3) fraud . . .; (4) the judgment is void; (5) the judgment has been satisfied, released or discharged;

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. . . or (6) any other reason that justifies relief.” Fed. R. Civ. Proc. 60(b). Where none of these

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factors is present the motion is properly denied. Fuller v. M.G. Jewelry, 950 F.2d 1437, 1442 (9th

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Cir. 1991).

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circumstances, unless the district court is presented with newly discovered evidence, committed clear

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error, or if there is an intervening change in the controlling law,” and it “may not be used to raise

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arguments or present evidence for the first time when they could reasonably have been raised earlier

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in the litigation.” Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880

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(9th Cir. 2009) (internal quotations marks and citations omitted) (emphasis in original).

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III.

“A motion for reconsideration should not be granted, absent highly unusual

Discussion

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Plaintiff claims that the Court erroneously counted dismissal of his prior action as a strike.

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Since this action is not a strike he is not precluded from proceeding in forma pauperis pursuant to

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section 1915(g), or, in the alternative, he should have been allowed an opportunity to pay the full

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filing fee prior to this action being dismissed. Plaintiff alleges that the Court committed an error in
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counting his prior dismissals as strikes and his motion for reconsideration is granted.

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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . . . under

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this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United States that was dismissed on the grounds

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that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury.” “[I]f the language of a statute is clear,

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we look no further than that language in determining the statute’s meaning,” unless “what seems to

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be the plain meaning of the statute . . . lead[s] to absurd or impracticable consequences.” Seattle-

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First Nat’l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations

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omitted). The language of section 1915(g) is clear: a dismissal on the ground that an action is

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frivolous, malicious, or fails to state a claim counts as strike. Adherence to the language of section

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1915(g) by counting as strikes only those dismissals that were made upon the grounds of frivolity,

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maliciousness, and/or failure to state a claim does not lead to absurd or impracticable consequences.

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Federal courts are well aware of the existence of section 1915(g). If a court dismisses an action on

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the grounds that it is frivolous, malicious, and/or fails to state a claim, the court should state as much.

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Such a dismissal may then be counted as a strike under section 1915(g).

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The Court found that Palmer v. Johnson, No. 2:05-cv-07121-UA-E (C.D.Cal. Nov. 2, 2005);

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Palmer v. Crawford, No. 3:03-cv-01271-SI (N.D.Cal. May 16, 2003); and Palmer v. Lamarque, No.

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3:03-cv-00956-SI (N.D.Cal. May 16, 2003), were dismissed for failure to state a claim and counted

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as strikes under section 1915(g).

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In the order dismissing Palmer v. Johnson, No. 2:05-cv-07121-UA-E (C.D.Cal. Nov. 2,

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2005), it is clearly stated that the complaint fails to state a claim upon which relief can be granted.

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Johnson was dismissed prior to Plaintiff filing the instant action and counts as a strike under section

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1915(g).

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Plaintiff’s complaint in Palmer v. Lamarque, No. 3:03-cv-00956-SI (N.D.Cal. May 16, 2003),

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was dismissed on April 30, 2003, for failure to state a claim and Plaintiff was granted until May 23,

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2003, to file an amendment or an amended complaint. On May 16, 2003, the action was dismissed

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without prejudice. Plaintiff filed a motion for leave to file an amended complaint on August 5, 2003,
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and was advised that he could file a new complaint, but could not continue to litigate this action.

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Plaintiff did not file an amendment or an amended complaint within the time granted by the court.

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Since the complaint was dismissed for failure to state a claim, this dismissal is a strike under section

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1915(g). Lira v. Herrera, 427 F.3d 1164, 1169 (9th Cir. 2005).

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Plaintiff’s complaint in Palmer v. Crawford, No. 3:03-cv-01271-SI (N.D.Cal. May 16, 2003),

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was dismissed with leave to amend. Subsequently, rather than amending the complaint, Plaintiff

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filed a notice of voluntary dismissal and the action was dismissed. For the purpose of section

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1915(g), the dismissal of the action, not the dismissal of the complaint, counts as a strike. Since the

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dismissal in Crawford was based upon Plaintiff’s voluntary withdrawal of the suit it is not a prior

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strike under section 1915(g).

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Accordingly, at the time Plaintiff filed the complaint in this action he had only accrued two

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strikes pursuant to section 1915(g) and was entitled to proceed in forma pauperis. Since the action

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was dismissed based upon the finding that Plaintiff was not entitled to proceed in forma pauperis,

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the other grounds in Defendants motion to dismiss were not addressed. Accordingly, Defendants

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motion to dismiss shall be deemed resubmitted and referred to the Magistrate Judge for further

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consideration.

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IV.

ORDER

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Based on the foregoing it is HEREBY ORDERED that:

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1.

Plaintiff’s motion for reconsideration, filed April 8, 2010, is GRANTED;

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2.

Plaintiff’s motion for reconsideration and request for judicial notice, filed April 14,

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2010, are STRICKEN as duplicative;
3.

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Plaintiff’s motion for decision on pending motion, filed November 16, 2010, is
DENIED as moot;

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The order dismissing the case and judgment issued on March 22, 2010, are
VACATED;

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5.

The Clerk of the Court is directed to REOPEN this action;

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Plaintiff’s in forma pauperis status is REINSTATED;

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Defendants’ motion to dismiss, filed October 8, 2009, is deemed RESUBMITTED;
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This action is referred back to the Magistrate Judge for further consideration of
Defendants motion to dismiss; and

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IT IS SO ORDERED.

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Dated:
b9ed48

The Clerk of the Court is directed to serve a copy of this order on the Ninth Circuit.

August 4, 2011

/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE

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