Buchanan v. Clark et al

Filing 34

FINDINGS and RECOMMENDATION for Granting Defendant Clark's Motion to Revoke Plaintiff's In Forma Pauperis Status 27 , signed by Magistrate Judge Michael J. Seng on 12/27/12. Referred to Judge O'Neill. Objections Due Within Fourteen Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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WHITTIER BUCHANAN,

CASE NO. 1:09-cv-2029-LJO-MJS (PC)

Plaintiff,

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FINDINGS AND RECOMMENDATION FOR
GRANTING DEFENDANT CLARK’S
MOTION TO REVOKE PLAINTIFF’S IN
FORMA PAUPERIS STATUS

v.
G. CLARK, et al.

(ECF No. 27)

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Defendants.

OBJECTIONS DUE WITHIN FOURTEEN
(14) DAYS

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/

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I.

BACKGROUND

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Plaintiff Whittier Buchanan (“Plaintiff”) is a state prisoner proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
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Plaintiff initiated this action on November 19, 2009. (ECF No. 1.) The Court
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screened Plaintiff’s Complaint and gave Plaintiff the option of either proceeding on his
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cognizable claim for excessive force under the Eighth Amendment against Defendants
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Clark and Erickson or filing an amended complaint. (ECF No. 15.) Plaintiff notified the
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Court that he was willing to proceed on his cognizable claim; accordingly, the other
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Defendants and claims were dismissed. (ECF Nos. 16, 17, & 18.) The Court then ordered
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service on Defendants Clark and Erickson. (ECF Nos. 19 & 21.) As of this date, only
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Defendant Clark has filed an executed waiver of service. (ECF No. 23.)
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On May 1, 2012, Defendant Clark filed a motion to revoke Plaintiff’s in forma
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pauperis status. (ECF No. 22.) The Court denied Defendant Clark’s motion because

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Defendant Clark failed to provide the Court with sufficient information for it to determine if

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Plaintiff was subject to 28 U.S.C. § 1915. (ECF Nos. 26 & 30.)

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Defendant Clark has since filed a second motion to revoke Plaintiff’s in forma

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pauperis status. (ECF No. 27.) Plaintiff has filed an opposition. (ECF No. 28.) Defendant

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Clark has filed a reply. (ECF No. 29.) Pursuant to Local Rule 230(l) Defendant Clark’s

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motion is now ready for ruling.

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II.

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides

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LEGAL STANDARD

that
[i]n no event shall a prisoner bring a civil action ... under this section if the
prisoner has, 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 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 prisoner is under
imminent danger of serious physical injury.

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“[I]f the language of a statute is clear, we look no further than that language in determining

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the statute's meaning,” unless “what seems to be the plain meaning of the statute ... lead[s]

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to absurd or impracticable consequences.” Seattle–First Nat'l Bank v. Conaway, 98 F.3d

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1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted). The language of

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section 1915(g) is clear: a dismissal on the ground that an action is frivolous, malicious, or

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fails to state a claim counts as strike. Adherence to the language of section 1915(g) by

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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

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consequences. Federal courts are well aware of the existence of section 1915(g). If a

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court dismisses an action on the grounds that it is frivolous, malicious, and/or fails to state

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a claim, the court should state as much. Such a dismissal may then be counted as a strike

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under 1915(g).

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III.

DISCUSSION

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Defendant Clark argues that the following cases should count as strikes against

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Plaintiff: 1) Buchanan v. Terhune, et al., 4:99-cv-02076 (N.D. Cal. filed April 20, 1999), 2)

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Buchanan v. Harris, et al., 4:99-cv-3911 (N.D. Cal. filed August 20, 1999); 3) Buchanan v.

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Perez, et al., 4:99-cv-3990 (N.D. Cal. filed August 26, 1999); 4) Buchanan v. Chavez, et

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al., 4:99-cv-3991 (N.D. Cal. filed August 26, 1999); 5) Buchanan v. Williams, et al., 1:06-cv-

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1532 (E.D. Cal. filed October 31, 2006); 6) Buchanan v. Adkinson, et al., 4:03-cv-3678

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(N.D. Cal. filed August 7, 2003); and 7) Buchanan v. Adkinson, et al., 4:03-cv-03737 (N.D.

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Cal. filed August 11, 2003).

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The Court takes judicial notice of the above actions.

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The following cases cited by Defendant Clark do not count as a dismissal pursuant

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to 28 U.S.C. § 1915(g): 1) Buchanan v. Terhune, et al., 4:99-cv-02076 (N.D. Cal. filed April

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20, 1999) (dismissed as duplicative of another action), 2) Buchanan v. Harris, et al., 4:99-

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cv-3911 (N.D. Cal. filed August 20, 1999) (dismissed as duplicative of another action and

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under the “three strikes” provision of 28 U.S.C. § 1915), 3) Buchanan v. Adkinson, et al.,

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4:03-cv-03737 (N.D. Cal. filed August 11, 2003) (dismissed under the “three strikes”

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provision of 28 U.S.C. § 1915); and 4) Buchanan v. Adkinson, et al., 4:03-cv-3678 (N.D.

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Cal. filed August 7, 2003) (dismissed under the “three strikes” provision of 28 U.S.C. §

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1915).

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However, the remaining three cases cited by Defendant Clark do count as strikes

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pursuant to 28 U.S.C. § 1915(g): 1) Buchanan v. Chavez, et al., 4:99-cv-3991 (N.D. Cal.

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filed August 26, 1999) (dismissed for failure to state a claim and under the “three strikes”

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provision of 28 U.S.C. § 1915 on November 3, 1999); 2) Buchanan v. Williams, et al., 1:06-

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cv-1532 (E.D. Cal. filed October 31, 2006) (dismissed for failure to state a claim on

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October 24, 2008); and 3) Buchanan v. Perez, et al., 4:99-cv-3990 (N.D. Cal. filed August

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26, 1999) (dismissed for failing to state a claim, for maliciously bringing a duplicative claim,

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and for violating the “three strikes” provision of 28 U.S.C. § 1915 on November 3, 1999).

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The Court concludes that Plaintiff has thus accrued three strikes pursuant to 28

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U.S.C. § 1915(g). Because Plaintiff was subject to the three strikes provision of § 1915(g)

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since at least October 24, 2008, he may not proceed in forma pauperis in this action

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unless, at the time of the filing of this action, he was under imminent danger of serious

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physical injury. Plaintiff’s original Complaint delineated the following claims: 1) retaliatory

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denial of Plaintiff’s court access; 2) retaliatory denial of Plaintiff’s right to be free from cruel

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and unusual punishment; 3) retaliatory searches and seizures; 4) retaliatory use of

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excessive force; 5) deliberate indifference to Plaintiff’s serious medical needs; 6)

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Defendants’ failure to protect Plaintiff; 7) retaliatory delay of medical treatment; and 8)

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various claims under California State law. (Compl., ECF No. 1.) Plaintiff did not allege he

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was in imminent danger at the time he initiated this action.

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IV.

CONCLUSION AND RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

Defendant Clark’s motion to revoke Plaintiff's in forma pauperis status, filed
June 29, 2012, should be GRANTED;

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2.

Plaintiff's in forma pauperis status should be REVOKED;

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3.

Plaintiff be ordered to pay the full $350.00 filing fee within fourteen (14) days

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from the date of service of the District Judge's order adjudicating these

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Findings and Recommendations; and

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4.

Failure to timely pay the full filing fee should result in dismissal of this action
without prejudice.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with these Findings and Recommendations,

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any party may file written objections with the Court and serve a copy on all parties. Such

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a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." Any reply to the objections shall be served and filed within ten days

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after service of the objections. The parties are advised that failure to file objections within

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the specified time may waive the right to appeal the District Court's order. Martinez v. Y1

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st, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ci4d6

December 27, 2012

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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