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)

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