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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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 LEONARD RANSOM, JR., 11 Plaintiff, 12 13 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., 14 Defendants. 15 ORDER FOR DEFENDANTS TO FILE ANSWER WITHIN THIRTY DAYS 16 17 18 I. BACKGROUND 19 Leonard Ransom, Jr. (APlaintiff@) is a state prisoner proceeding pro se and in forma 20 pauperis with this civil rights action pursuant to 42 U.S.C. ' 1983. The matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On September 16, 2013, findings and a recommendation were entered, recommending 23 that Defendants‟ motion to revoke Plaintiff‟s in forma pauperis status be denied. (Doc. 50.) 24 On October 11, 2013, Defendants filed objections. (Doc. 52.) On October 31, 2013, Plaintiff 25 filed a reply to Defendants‟ objections. (Doc. 55.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 27 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 28 the court now addresses Defendants‟ objections to the findings and recommendation. 1 1 II. DEFENDANTS’ OBJECTIONS 2 A. 3 Defendants object to the Magistrate Judge‟s finding that they bear an initial burden to 4 provide evidence that Plaintiff does not qualify for § 1915(g)‟s imminent danger exception. 5 The Magistrate Judge found, “with respect to the imminent danger issue, . . that Defendants 6 failed to provide sufficient evidence to prevail on their motion.” 7 Recommendation (F&R), Doc. 50 at 9:2-4.) Defendants’ Initial Burden (Findings and 8 Defendants argue that they do not bear the initial burden to show that the imminent 9 danger exception does not apply, and the lack of imminent danger is not an element necessary 10 to establish that a prisoner is not entitled to in forma pauperis status. Plaintiff argues that 11 Defendants failed to meet their burden in establishing a prima facie case; however, Plaintiff 12 acknowledges that he would bear the burden of showing that he satisfies the “imminent danger” 13 exception in response to a showing by Defendants that he has three strikes. 14 Defendants‟ argument has merit. Defendants correctly cite the Ninth Circuit‟s finding 15 in Andrews v. King that the defendants‟ initial burden is to “produce documentary evidence 16 that allows the district court to conclude that the plaintiff has filed at least three prior actions 17 that were dismissed because they were „frivolous, malicious or fail[ed] to state a claim.‟” 18 Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). 19 initial burden, the burden then shifts to the prisoner.” Id. “The prisoner bears the ultimate 20 burden of persuading the court that § 1915(g) does not preclude IFP status.” Id. “Once the defendants have met this 21 The Court finds that Defendants‟ initial burden includes a showing that the “imminent 22 danger” exception does not apply to Plaintiff. Therefore, this finding by the Magistrate Judge 23 will respectfully not be adopted. 24 B. 25 Defendants object to the Magistrate Judge‟s finding that their evidence was not 26 sufficient for the court to find that the dismissal of Plaintiff‟s case Ransom v. County of Santa 27 Clara, case number 3:03-cv-5729, as time-barred under the statute of limitations constitutes a 28 “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 2 1 not submit a copy of the order dismissing Plaintiff‟s case, the court could not determine the 2 substance of the dismissal: whether the running of the statute of limitations was apparent on 3 the face of the complaint, or if the trial court had accepted matters outside of the pleadings. 4 (F&R, Doc. 50 at 8:1-17.) 5 Defendants argue that it was apparent by the docket they submitted that the case was 6 dismissed as time-barred by the statute of limitations prior to defendants making any 7 appearance in the case, thus demonstrating that “the face of the complaint failed to state a 8 claim, and was frivolous.” Objections, Doc. 52 at 3-4. Defendants also argue that even if 9 matters outside of the pleadings had been considered, a dismissal based on the statute of 10 limitations would still amount to a dismissal for failure to state a claim. In opposition, Plaintiff 11 argues that Defendants failed to make a prima facie case against him. 12 The Ninth Circuit has held that “[a] claim may be dismissed under Rule 12(b)(6) on the 13 ground that it is barred by the applicable statute of limitations only when „the running of the 14 statute is apparent on the face of the complaint.‟” Von Saher v. Norton Simon Museum of Art 15 at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010) (quoting Huynh v. Chase Manhattan Bank, 465 16 F.3d 992, 997 (9th Cir. 2006), cert. denied, 131 S.Ct. 3055 (2011) (emphasis added). Thus, to 17 find that Plaintiff‟s case was properly dismissed under Rule 12(b)(6), the court required 18 evidence that it was apparent on the face of the complaint that the case was barred by the 19 statute of limitations, and that the case was not dismissed based on matters outside of the 20 pleadings. The docket entry for the order dismissing the case, entry #3, simply states “Order 21 Dismissing Case,” without explanation. (Doc. 28-1 at 3.) The docket entry for the Judgment 22 states “Judgment: An order of judgment is entered dismissing this civil rights action as barred 23 by the statute of limitations.” Id. There is no indication on the docket that the case was 24 dismissed for failure to state a claim or as frivolous. 25 The Ninth Circuit has cautioned district courts to carefully examine orders of dismissal 26 for their basis in determining whether they count as “strikes” under § 1915(g): “Not all 27 unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to 28 deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an 3 1 action, and other relevant information, the district court determines that the action was 2 dismissed because it was frivolous, malicious or failed to state a claim.” Andrews, 398 F.3d at 3 1121 (emphasis added). 4 Based on the foregoing, the Court shall adopt the Magistrate Judge‟s finding that 5 Defendants failed to submit sufficient evidence for the court to find that the dismissal of 6 Plaintiff‟s case dismissed under the statute of limitations constitutes a “strike.” Plaintiff’s Voluntary Dismissal 7 C. 8 Defendants also object to the Magistrate Judge‟s finding that Plaintiff‟s voluntary 9 dismissal of his case Ransom v. State of California , case number 1:09-cv-01688-AWI-DLB- 10 PC, does not count as a “strike.” The Magistrate Judge found that pursuant to definitions given 11 in Andrews v. King, a voluntary dismissal under Rule 41 does not ordinarily constitute a 12 dismissal on the grounds that an action or appeal is “frivolous, malicious, or fails to state a 13 claim upon which relief may be granted.” (F&R, Doc. 50 at 7:16-18, citing Andrews, 398 F.3d 14 at 1121.) The Magistrate Judge also found that the court could not properly evaluate the trial 15 court‟s orders dismissing the complaint and dismissing the case because Defendants had not 16 provided copies of them. 17 Defendants argue that although Plaintiff‟s case was technically dismissed under Rule 18 41, the dismissal constitutes a “strike” because the order underlying the final dismissal was a 19 dismissal for failure to state a claim. In support of this argument, Defendants assert that 20 Plaintiff chose to file a request for voluntary dismissal rather than amend the complaint, after 21 the case was dismissed for failure to state a claim with leave to amend. Defendants also argue 22 that even if Plaintiff was given leave to refile the case, the dismissal counts as a “strike,” 23 because the Ninth Circuit held in O‟Neal v. Price that the “PLRA does not distinguish between 24 dismissals with and without prejudice” and if failure to state a claim is a “fully sufficient 25 condition” for dismissing the complaint, the dismissal counts as a strike. (Objections, Doc. 52 26 at 4¶III (citing O‟Neal v. Price, , 531 F.3d 1146, 1156 (9th Cir. 2008)). 27 The Ninth Circuit in O‟Neal provides that when a court dismisses a complaint for 28 failure to state a claim with leave to amend, and plaintiff does not take advantage of that 4 1 opportunity, the court may convert the dismissal of the complaint into dismissal of the entire 2 action. O'Neal at 1155. In Plaintiff‟s case, however, Defendants provide no evidence that the 3 court “converted” the dismissal of the complaint into dismissal of the entire action. Entry #14 4 on the docket indicates that the Clerk of Court was directed to “Close Action Pursuant to 5 Plaintiff‟s Notice of Voluntary Dismissal.” (Doc. 28-2 at 3.) Rule 41(a) of the Federal Rules 6 of Civil Procedure permits voluntary dismissal of an action by the plaintiff, and such a 7 dismissal leaves the parties as though no action had been brought. Wilson v. City of San Jose, 8 111 F.3d 688, 692 (9th Cir. 1997). Although the order of dismissal need not cite to section 9 1915(g) for it to qualify as a strike, it will only so qualify if it can be reasonably interpreted as 10 being premised on one of the reasons enumerated in section 1915(g). See Moore v. Maricopa 11 County Sheriff‟s Office, 657 F.3d 890, 895 (9th Cir. 2011). 12 demonstrated how this dismissal can be reasonably interpreted as being premised on a reason 13 listed in section 1915(g). 14 19617, at *17, 2009 WL 650413 (E.D.Cal. Mar. 12, 2009) (“That plaintiff did not accept the 15 invitation to recast his complaints does not render the ultimate dismissals, as articulated by the 16 respective presiding judges, determinations that the actions did not state claims and thus could 17 not have moved forward.”). Here, Defendants have not See Keeton v. Cox, No. CIV–S–06–1094, 2009 U.S. Dist. LEXIS 18 For these reasons, the Court shall adopt the Magistrate Judge‟s finding that that the 19 dismissal of Plaintiff‟s case pursuant to Rule 41(a) did not constitute a “strike” under § 20 1915(g). 21 III. CONCLUSION 22 Accordingly, THE COURT HEREBY ORDERS that: 23 1. 24 25 September 16, 2013, are adopted in part; 2. 26 27 28 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; 3. Defendants are required to file an answer to the complaint within thirty days from the date of service of this order; and 5 1 4. This case is referred back to the Magistrate Judge for further proceedings. 2 3 4 IT IS SO ORDERED. Dated: December 5, 2013 SENIOR DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6

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