Ransom v. Gonzalez et al

Filing 58

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS IN PART 50 ; ORDER DENYING Defendants' Motion to Revoke Plaintiff's In Forma Pauperis Status 27 ; ORDER for Defendants to File Answer Within Thirty Days, signed by District Judge Anthony W. Ishii on 12/5/13: Matter referred back to the Magistrate Judge for further proceedings. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD RANSOM, JR.,

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Plaintiff,

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1:10-cv-00397-AWI-GSA-PC
ORDER ADOPTING FINDINGS AND
RECOMMENDATION IN PART
(Doc. 50.)

vs.

ORDER DENYING DEFENDANTS‟
MOTION TO REVOKE PLAINTIFF‟S IN
FORMA PAUPERIS STATUS
(Doc. 27.)

DANIEL GONZALEZ, et al.,

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Defendants.

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ORDER FOR DEFENDANTS TO FILE
ANSWER WITHIN THIRTY DAYS

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I.

BACKGROUND

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Leonard Ransom, Jr. (APlaintiff@) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. The matter was referred to a

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United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On September 16, 2013, findings and a recommendation were entered, recommending

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that Defendants‟ motion to revoke Plaintiff‟s in forma pauperis status be denied. (Doc. 50.)

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On October 11, 2013, Defendants filed objections. (Doc. 52.) On October 31, 2013, Plaintiff

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filed a reply to Defendants‟ objections. (Doc. 55.)

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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this

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court has conducted a de novo review of this case. Having carefully reviewed the entire file,

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the court now addresses Defendants‟ objections to the findings and recommendation.
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II.

DEFENDANTS’ OBJECTIONS

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A.

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Defendants object to the Magistrate Judge‟s finding that they bear an initial burden to

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provide evidence that Plaintiff does not qualify for § 1915(g)‟s imminent danger exception.

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The Magistrate Judge found, “with respect to the imminent danger issue, . . that Defendants

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failed to provide sufficient evidence to prevail on their motion.”

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Recommendation (F&R), Doc. 50 at 9:2-4.)

Defendants’ Initial Burden

(Findings and

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Defendants argue that they do not bear the initial burden to show that the imminent

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danger exception does not apply, and the lack of imminent danger is not an element necessary

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to establish that a prisoner is not entitled to in forma pauperis status. Plaintiff argues that

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Defendants failed to meet their burden in establishing a prima facie case; however, Plaintiff

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acknowledges that he would bear the burden of showing that he satisfies the “imminent danger”

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exception in response to a showing by Defendants that he has three strikes.

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Defendants‟ argument has merit. Defendants correctly cite the Ninth Circuit‟s finding

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in Andrews v. King that the defendants‟ initial burden is to “produce documentary evidence

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that allows the district court to conclude that the plaintiff has filed at least three prior actions

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that were dismissed because they were „frivolous, malicious or fail[ed] to state a claim.‟”

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Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005).

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initial burden, the burden then shifts to the prisoner.” Id. “The prisoner bears the ultimate

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burden of persuading the court that § 1915(g) does not preclude IFP status.” Id.

“Once the defendants have met this

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The Court finds that Defendants‟ initial burden includes a showing that the “imminent

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danger” exception does not apply to Plaintiff. Therefore, this finding by the Magistrate Judge

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will respectfully not be adopted.

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B.

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Defendants object to the Magistrate Judge‟s finding that their evidence was not

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sufficient for the court to find that the dismissal of Plaintiff‟s case Ransom v. County of Santa

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Clara, case number 3:03-cv-5729, as time-barred under the statute of limitations constitutes a

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“strike” under 28 U.S.C. § 1915(g). The Magistrate Judge found that because Defendants did

Dismissal as Time-Barred by the Statute of Limitations

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not submit a copy of the order dismissing Plaintiff‟s case, the court could not determine the

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substance of the dismissal: whether the running of the statute of limitations was apparent on

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the face of the complaint, or if the trial court had accepted matters outside of the pleadings.

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(F&R, Doc. 50 at 8:1-17.)

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Defendants argue that it was apparent by the docket they submitted that the case was

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dismissed as time-barred by the statute of limitations prior to defendants making any

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appearance in the case, thus demonstrating that “the face of the complaint failed to state a

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claim, and was frivolous.” Objections, Doc. 52 at 3-4. Defendants also argue that even if

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matters outside of the pleadings had been considered, a dismissal based on the statute of

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limitations would still amount to a dismissal for failure to state a claim. In opposition, Plaintiff

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argues that Defendants failed to make a prima facie case against him.

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The Ninth Circuit has held that “[a] claim may be dismissed under Rule 12(b)(6) on the

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ground that it is barred by the applicable statute of limitations only when „the running of the

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statute is apparent on the face of the complaint.‟” Von Saher v. Norton Simon Museum of Art

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at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465

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F.3d 992, 997 (9th Cir. 2006), cert. denied, 131 S.Ct. 3055 (2011) (emphasis added). Thus, to

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find that Plaintiff‟s case was properly dismissed under Rule 12(b)(6), the court required

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evidence that it was apparent on the face of the complaint that the case was barred by the

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statute of limitations, and that the case was not dismissed based on matters outside of the

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pleadings. The docket entry for the order dismissing the case, entry #3, simply states “Order

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Dismissing Case,” without explanation. (Doc. 28-1 at 3.) The docket entry for the Judgment

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states “Judgment: An order of judgment is entered dismissing this civil rights action as barred

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by the statute of limitations.” Id. There is no indication on the docket that the case was

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dismissed for failure to state a claim or as frivolous.

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The Ninth Circuit has cautioned district courts to carefully examine orders of dismissal

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for their basis in determining whether they count as “strikes” under § 1915(g): “Not all

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unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to

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deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an
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action, and other relevant information, the district court determines that the action was

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dismissed because it was frivolous, malicious or failed to state a claim.” Andrews, 398 F.3d at

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1121 (emphasis added).

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Based on the foregoing, the Court shall adopt the Magistrate Judge‟s finding that

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Defendants failed to submit sufficient evidence for the court to find that the dismissal of

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Plaintiff‟s case dismissed under the statute of limitations constitutes a “strike.”
Plaintiff’s Voluntary Dismissal

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C.

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Defendants also object to the Magistrate Judge‟s finding that Plaintiff‟s voluntary

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dismissal of his case Ransom v. State of California , case number 1:09-cv-01688-AWI-DLB-

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PC, does not count as a “strike.” The Magistrate Judge found that pursuant to definitions given

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in Andrews v. King, a voluntary dismissal under Rule 41 does not ordinarily constitute a

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dismissal on the grounds that an action or appeal is “frivolous, malicious, or fails to state a

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claim upon which relief may be granted.” (F&R, Doc. 50 at 7:16-18, citing Andrews, 398 F.3d

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at 1121.) The Magistrate Judge also found that the court could not properly evaluate the trial

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court‟s orders dismissing the complaint and dismissing the case because Defendants had not

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provided copies of them.

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Defendants argue that although Plaintiff‟s case was technically dismissed under Rule

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41, the dismissal constitutes a “strike” because the order underlying the final dismissal was a

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dismissal for failure to state a claim. In support of this argument, Defendants assert that

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Plaintiff chose to file a request for voluntary dismissal rather than amend the complaint, after

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the case was dismissed for failure to state a claim with leave to amend. Defendants also argue

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that even if Plaintiff was given leave to refile the case, the dismissal counts as a “strike,”

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because the Ninth Circuit held in O‟Neal v. Price that the “PLRA does not distinguish between

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dismissals with and without prejudice” and if failure to state a claim is a “fully sufficient

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condition” for dismissing the complaint, the dismissal counts as a strike. (Objections, Doc. 52

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at 4¶III (citing O‟Neal v. Price, , 531 F.3d 1146, 1156 (9th Cir. 2008)).

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The Ninth Circuit in O‟Neal provides that when a court dismisses a complaint for

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failure to state a claim with leave to amend, and plaintiff does not take advantage of that
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opportunity, the court may convert the dismissal of the complaint into dismissal of the entire

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action. O'Neal at 1155. In Plaintiff‟s case, however, Defendants provide no evidence that the

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court “converted” the dismissal of the complaint into dismissal of the entire action. Entry #14

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on the docket indicates that the Clerk of Court was directed to “Close Action Pursuant to

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Plaintiff‟s Notice of Voluntary Dismissal.” (Doc. 28-2 at 3.) Rule 41(a) of the Federal Rules

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of Civil Procedure permits voluntary dismissal of an action by the plaintiff, and such a

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dismissal leaves the parties as though no action had been brought. Wilson v. City of San Jose,

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111 F.3d 688, 692 (9th Cir. 1997). Although the order of dismissal need not cite to section

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1915(g) for it to qualify as a strike, it will only so qualify if it can be reasonably interpreted as

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being premised on one of the reasons enumerated in section 1915(g). See Moore v. Maricopa

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County Sheriff‟s Office, 657 F.3d 890, 895 (9th Cir. 2011).

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demonstrated how this dismissal can be reasonably interpreted as being premised on a reason

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listed in section 1915(g).

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19617, at *17, 2009 WL 650413 (E.D.Cal. Mar. 12, 2009) (“That plaintiff did not accept the

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invitation to recast his complaints does not render the ultimate dismissals, as articulated by the

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respective presiding judges, determinations that the actions did not state claims and thus could

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not have moved forward.”).

Here, Defendants have not

See Keeton v. Cox, No. CIV–S–06–1094, 2009 U.S. Dist. LEXIS

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For these reasons, the Court shall adopt the Magistrate Judge‟s finding that that the

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dismissal of Plaintiff‟s case pursuant to Rule 41(a) did not constitute a “strike” under §

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1915(g).

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III.

CONCLUSION

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Accordingly, THE COURT HEREBY ORDERS that:

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1.

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September 16, 2013, are adopted in part;
2.

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The Findings and Recommendation issued by the Magistrate Judge on

Defendants‟ motion to revoke Plaintiff‟s in forma pauperis status, filed on
December 21, 2013, is DENIED;

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Defendants are required to file an answer to the complaint within thirty days
from the date of service of this order; and
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This case is referred back to the Magistrate Judge for further proceedings.

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IT IS SO ORDERED.
Dated: December 5, 2013
SENIOR DISTRICT JUDGE

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