Hadley v. Barnes et al

Filing 11

ORDER to SHOW CAUSE regarding Three Strikes signed by Magistrate Judge Michael J. Seng on 1/31/2012. Show Cause Response due by 2/17/2012.(Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 LEONARD HADLEY, Plaintiff, 10 ORDER TO SHOW CAUSE REGARDING THREE STRIKES AND RULE 11(b)(3) SANCTION v. 11 12 CASE NO. 1:10-cv-521-AWI-MJS (PC) ROBERT BARNES, et al., (ECF No. 4) Defendants. 13 FOURTEEN DAY DEADLINE / 14 15 Plaintiff Leonard Hadley (“Plaintiff”) is a former state prisoner proceeding pro se in 16 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff was previously at California 17 Substance Abuse Treatment Facility and State Prison, Corcoran. He has since been 18 released from prison. 19 A review of the record of actions filed by Plaintiff in the United States District Court 20 reveals that Plaintiff filed three or more actions that were dismissed as frivolous, malicious 21 or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28 of 22 the United States Code governs proceedings in forma pauperis. Section 1915(g) provides 23 that: 24 25 26 27 [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. 28 1 1 28 U.S.C. § 1915(g).1 Determining whether Plaintiff’s actions count as strikes under section 2 1915(g) requires the Court to conduct a “careful examination of the order dismissing an 3 action, and other relevant information,” to determine if, in fact, “the action was dismissed 4 because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 5 1113, 1121 (9th Cir. 2005). 6 After careful review of the dismissal orders, the Court takes judicial notice that 7 Plaintiff has four prior actions dismissed for being frivolous or for failing to state a claim for 8 which relief can be granted under section 1983. Those cases are: 1) Hadley v. Rios, et al., 9 2:05-cv-07726-UA-PLA (C.D. Cal.) (dismissed December 1, 2005, for being frivolous); 2) 10 Hadley v. Rios, et al., 5:05-cv-01185-UA-PLA (C.D. Cal.) (dismissed February 2, 2006, for 11 being frivolous); 3) Hadley v. State of California, et al., 2:07-cv-01592-FCD-EFB (E.D. Cal.) 12 (dismissed March 13, 2008, for failure to state a claim); and 4) Hadley v. Yates, et al., 13 2:09-cv-01583-GEB-CMK (E.D. Cal.) (dismissed November 30, 2009, for failure to state a 14 claim). 15 Moreover, the Court finds that a dismissal pursuant to Heck counts as a strike under 16 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on a denial 17 of “the existence of a cause of action.” Heck, 512 U.S. at 489. Additionally, several other 18 courts have held that dismissals under Heck count as strikes under 28 U.S.C. § 1915(g). 19 See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls 20 under the rule in Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) 21 (“[I]n light of Heck, the complaint was properly dismissed for failure to state a claim.”). 22 Therefore, the Court takes judicial notice that the Plaintiff has five prior actions dismissed 23 under Heck v. Humphrey, 512 U.S. 477 (1994) for not stating a cognizable claim under 24 section 1983. Those cases are: 5) Hadley v. San Bernardino Public Defenders Office, et 25 26 27 28 1 “This subdivision is com m only known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which were dism issed ‘on the ground that [they were] frivolous, m alicious, or fail[ ] to state a claim ’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g), a prisoner with three strikes or m ore cannot proceed [in form a pauperis].” Andrews v. King, 398 F.3d 1113, 1116 n.1(9th Cir. 2005). 2 1 al., 2:03-cv-01251-UA-PLA (C.D. Cal.) (dismissed March 3, 2003, for failure to state a claim 2 under Heck); 6) Hadley v. San Bernardino County, et al., 5:05-cv-00920-UA-PLA (C.D. Cal.) 3 (dismissed November 2, 2005, for failure to state a claim under Heck); 7) Hadley v. San 4 Bernardino County, et al., 5:05-cv-00951-UA-CW (C.D. Cal.) (dismissed November 8, 2005, 5 for failure to state a claim under Heck); 8) Hadley et al v. San Bernardino County, et al., 6 5:05-cv-01155-UA-CW (C.D. Cal.) (dismissed February 13, 2006, for failure to state a claim 7 under Heck) and 9) Hadley v. Schwarzenegger, et al., 5:10-cv-00017-UA-PLA (C.D. Cal.) 8 (dismissed January 12, 2010, for failure to state a claim under Heck). 9 It appears to the Court that Plaintiff has three or more strikes and became subject 10 to section 1915(g) well before Plaintiff filed this action on March 17, 2010. Therefore, the 11 Court finds that Plaintiff should be precluded from proceeding in forma pauperis unless he 12 is, at the time the Complaint was filed, under imminent danger of serious physical injury. 13 Because it appears that the Plaintiff has on three or more prior occasions brought 14 civil actions that have been dismissed as frivolous or for failure to state a claim and it 15 appears that Plaintiff has violated Rule 11(b)(3) of the Federal Rules of Civil Procedure, the 16 Court HEREBY ORDERS that Plaintiff SHALL SHOW CAUSE within fourteen (14) days of 17 the date of service of this order why the abovementioned actions do not count as “strikes” 18 under 28 U.S.C. § 1915(g) and why the action should not be dismissed without prejudice 19 to allow Plaintiff to refile with the submission of the $350.00 filing fee. 20 21 22 -IT IS SO ORDERED. 23 Dated: ci4d6 January 31, 2012 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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