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