Hicks v. John Does 1 thru 5

Filing 43

ORDER and REPORT and RECOMMENDATIONS, signed by Magistrate Judge Larry M. Boyle on 9/28/09: Recommending that Defendant's Motion to Revoke Plaintiff's In Forma Pauperis Status 40 be GRANTED; Plaintiff is granted thirty (30) days to pay th e full filing fee, and thereafter, thirty (30) days to reimburse the U.S. Marshal Service for the costs of service, if any; Failure to pay these fees and costs will result in dismissal of Plaintiff's case without prejudice under Rule 41; and The Clerk of Court be ORDERED to note on the docket that Plaintiff has accrued three dismissals that constitute strikes under 28 U.S.C. § 1915(g); MOTION to Revoke Plaintiff's In Forma Pauperis Status 40 referred to Judge Winmill. (Hellings, J)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

M IC H A E L J. HICKS,

) ) P la in tif f s , ) ) v. ) ) J. BLACKBURN, JOHN DOES 2 ) T H R U 5, et al., ) ) D ef en d an ts. ) _________________________________)

C V 07-CV-00006 BLW (PC)

O R D E R AND REPORT AND R E C O M M E N D A T IO N

C u rren tly pending before this Court is Defendant J. Blackburn's Motion for More D e f in ite Statement (Docket No. 36), Plaintiff's unopposed Motion to Amend the C o m p la in t (Docket No. 38) and Defendant Blackburn's unopposed Motion to Revoke P lain tiff 's In Forma Pauperis Status (Docket No. 40). This matter was referred to M a g is tra te Judge Larry M. Boyle by the Honorable B. Lynn Winmill on September 11, 2 0 0 9 (Docket No. 41). Having reviewed the record in this matter, and having considered th e written arguments of the parties in the briefing, the undersigned Magistrate Judge c o n c lu d e s that oral argument is unnecessary and would not aide the Court in its decision. Accordingly, undersigned issues the following Order and Report and Recommendation.

ORDER AND REPORT AND RECOMMENDATION - 1

D E F E N D A N T 'S MOTION FOR MORE DEFINITE STATEMENT AND PLAINTIFF'S MOTION TO AMEND COMPLAINT D e f en d a n t Blackburn requests a more definite statement as to the allegations of P lain tiff 's Complaint against him specifically. Plaintiff's Motion to Amend his C o m p la in t and his lodged Amended Complaint sets forth specific allegations of D e f en d a n t's involvement in an alleged assault. Accordingly, Plaintiff's amended c o m p la in t provides the relief Defendant Blackburn requests thus rendering moot the m o tio n for a more definite statement. P lain tiff 's motion to amend appears to state his complaint and allegations more clea rly and is unopposed. Good cause appearing and no objection filed thereto, the Court w ill grant Plaintiff's motion to amend the complaint and order that the lodged Amended C o m p la in t be filed. REPORT ON MOTION TO REVOKE IN FORMA PAUPERIS STATUS A. B a c k gro u n d P la in tif f is a California state prisoner proceeding in forma pauperis. He alleges that h e was physically assaulted in late March or early April, 2005, in violation of his state and co n stitutio n al rights. Plaintiff seeks a judgment in his favor for nominal, compensatory a n d punitive damages. Defendant Blackburn argues that Plaintiff is not entitled to proceed in forma pauperis because he has filed more than 20 lawsuits in federal court, and had m o re than three dismissals that count as strikes issued against him pursuant to 28 U.S.C. § 1 9 1 5 (g ). Defendant further argues that Plaintiff has been deemed already by this district ORDER AND REPORT AND RECOMMENDATION - 2

c o u rt as ineligible to proceed in forma pauperis. See Hicks v. T. Thomas, CV F-02-5287, O rd e r dated May 19, 2003. (Motion to Revoke Plaintiff's In Forma Pauperis Status, Exh. C , Docket No. 40-4). B. D is c u s s io n A Court is authorized to review a litigant's in forma pauperis status "at any time" d u rin g the pendency of a case. 28 U.S.C. § 1915(e)(2). The "three strikes" provision of th e in forma pauperis statute, 28 U.S.C. § 1915(g), provides: In no event shall a prisoner bring a civil action or appeal a judgment in a c iv il action or proceeding under this section if the prisoner has, on 3 or m o re prior occasions, while incarcerated or detained in any facility, brought a n action or appeal in a court of the United States that was dismissed on the g ro u n d s that it is frivolous, malicious, or fails to state a claim upon which re lie f may be granted, unless the prisoner is under imminent danger of s e rio u s physical injury. In Andrews v. King, 398 F.3d 1113 (9th Cir. 2005), the United States Court of A p p e a ls for the Ninth Circuit explained the analysis used to determine whether an in m a te 's case is subject to the three strikes rule: [W]e hold that if defendants challenge a prisoner-plaintiff's IFP status, th e n the initial production burden rests with the defendants. Thus, when c h a lle n g in g a prisoner's IFP status, the defendants must produce d o c u m e n ta ry evidence that allows the district court to conclude that the p l a in t if f has filed at least three prior actions that were dismissed because they were "frivolous, malicious or fail[ed] to state a claim." § 1915(g). In s o m e instances, the district court docket records may be sufficient to show th a t a prior dismissal satisfies at least one of the criteria under § 1915(g) a n d therefore counts as a strike. However, in many instances, the docket re c o rd s will not reflect the basis for the dismissal. In these instances, the d e f en d a n ts may not simply rest on the fact of dismissal. Rather, the d e f e n d a n ts must produce court records or other documentation that will ORDER AND REPORT AND RECOMMENDATION - 3

a llo w the district court to determine that a prior case was dismissed because it was "frivolous, malicious or fail[ed] to state a claim." § 1915(g). Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by e x p la in in g why a prior dismissal should not count as a strike. Id . at 1120. H e re , Defendants point out that Plaintiff has initiated at least 20 civil lawsuits in th e California federal courts, at least three of which were deemed already to be strikes a g a in st him rendering him ineligible for in forma pauperis status: Hicks v. Ortiz, E.D. C a l. No. 01-CV-05728; Hicks v. Marshall, N.D. Cal., 93-CV-04272; and, Hicks v. Lewis, N .D . Cal., No. 94-CV-02103; and that Plaintiff has had at least one case dismissed by d e n ia l of in forma pauperis status as a result of the strikes. Hicks v. Thomas, E.D. Cal., N o . CV-F-02-5287-REC-DLB-P. The Court has reviewed Defendant's production of a May 19, 2003 order adopting f in d in g s and recommendations and the judgment of dismissal in Case No. CV-F-5287R E C -D L B -P , Hicks v. Thomas, from this United States District Court. In that case, U n ite d States District Judge Robert E. Coyle determined that Plaintiff could not proceed in forma pauperis because he had previously accumulated three dismissals that counted as strik e s under 28 U.S.C. § 1915(g). (Motion to Revoke Plaintiff's In Forma Pauperis S ta tu s , Exh. C, Docket No. 40 - 3). A careful review of the records reveals that D ef en d an t's argument is adequately supported by the facts set forth by the court orders a n d docket sheets. (Id., Exhibits A-C.)

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D e f e n d a n ts' argument is also supported by applicable law. In particular, in T ie r n e y v. Kupers, 128 F.3d 1310 (9th Cir. 1997), the Ninth Circuit Court of Appeals d e te rm in e d that 28 U.S.C. § 1915(g) applies to "dismissals that preceded the effective d a te of the act [April 26, 1996]." Moreover, in so far as a prior determination has been made on this issue, Plaintiff is estopped from arguing that he does not have "three strikes" already against him. See K e n d a ll v. Visa U.S.A., Inc., 518 F.3d 1042 (9th Cir. 2008) ("Issue preclusion prevents a p a rty from relitigating an issue decided in a previous action if four requirements are met: " (1 ) there was a full and fair opportunity to litigate the issue in the previous action; (2) the is s u e was actually litigated in that action; (3) the issue was lost as a result of a final ju d g m e n t in that action; and (4) the person against whom collateral estoppel is asserted in th e present action was a party or in privity with a party in the previous action."); McClain v . Apodaca, 793 F.2d 1031 (9th Cir. 1986) (noting that it is proper for a court to examine th e res judicata effect of a prior judgement arising out of the same conduct sua sponte). B a se d on a review of the record and considering all of the foregoing, undersigned c o n c lu d e s that Defendant Blackburn met his initial burden, and the motion is unopposed. Accordingly, the undersigned Magistrate Judge recommends that the District Court find th a t the Plaintiff has had at least three prior cases dismissed that meet the criteria for s tr ik e s under 28 U.S.C. § 1915(g), and thus not entitled to proceed In Forma Pauperis.

ORDER AND REPORT AND RECOMMENDATION - 5

ORDER IT IS HEREBY ORDERED that Plaintiff's Motion to Amend the Complaint (D o ck et No. 38) is GRANTED; the Clerk of the Court is directed to file Plaintiff's p ro p o s e d Amended Complaint lodged at Docket No. 39. IT IS FURTHER ORDERED that Defendant J. Blackburn's Motion for a More D e f in ite Statement (Docket No. 36) is DENIED as moot. R E C O M M E N D A T IO N IT IS HEREBY RECOMMENDED that: 1. Defendant's Motion to Revoke Plaintiff's In Forma Pauperis Status (Docket

N o . 40) be GRANTED and Plaintiff's In Forma Pauperis Status be revoked accordingly; 2 . Plaintiff be granted thirty (30) days within which to pay the full filing fee, and th e re a f ter , thirty (30) additional days to reimburse the U.S. Marshal Service for the costs o f service, if any. 3. Failure to pay these fees and costs will result in dismissal of Plaintiff's case w ith o u t prejudice under Rule 41; and 4. The Clerk of Court be ordered to note on the docket that Plaintiff has accrued th re e dismissals that constitute strikes under 28 U.S.C. § 1915(g). DATED: September 28, 2009.

Honorable Larry M. Boyle U n ite d States Magistrate Judge ORDER AND REPORT AND RECOMMENDATION - 6