East v. Tuvera et al

Filing 9

ORDER Revoking IFP Status Pursuant Section 1915(g) (Docs. 1 , 5 ), signed by Judge Oliver W. Wanger on 7/22/2011. (Filing Fee Deadline: 8/24/2011) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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EBONE LEROY EAST

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CASE NO: 1:11-cv-00932-OWW-GBC (PC)

Plaintiff,

ORDER REVOKING IFP STATUS
PURSUANT SECTION 1915(g)

v.
(Docs. 1, 5)

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L. TUVERA, et al.,

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Defendants.
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/

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I.

Procedural History

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Plaintiff Ebone Leroy East, is a state prisoner proceeding pro se and in forma pauperis
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(“IFP”). On June 9, 2011, Plaintiff filed this civil rights action pursuant to 42 U.S.C. § 1983 and
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motioned to proceed IFP. (Docs. 1, 2). The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On June 9, 2011, the Magistrate Judge
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granted Plaintiff’s motion to proceed IFP. (Doc. 4). On June 21, 2010, the Magistrate Judge issued
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an order to show cause as to why Plaintiff’s in forma pauperis status should not be revoked pursuant
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to 28 U.S.C. 1915(g). (Doc. 5). On July 13, 2011, Plaintiff filed a response. (Doc. 8)
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II.

Three Strikes

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A review of the record of actions and appeals filed by Plaintiff in the United States District
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Court reveals that Plaintiff filed three or more actions and appeals that were dismissed as frivolous,
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malicious or for failing to state a claim upon which relief may be granted. Section 1915 of Title 28
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of the United States Code governs proceedings in forma pauperis. Section 1915(g) provides 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 1915(g)

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requires the Court to conduct a “careful examination of the order dismissing an action, and other

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relevant information,” to determine if, in fact, “the action was dismissed because it was frivolous,

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malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005).

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After careful review of the dismissal orders, the Court takes judicial notice that Plaintiff has

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three or more prior actions dismissed as frivolous or for failing to stating a cognizable claim under

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section 1983.2 Those cases are: 1) East v. County of Riverside, et al., 5:10-cv-01108-UA -E (PC)

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(C.D. Cal.) (dismissed August 5, 2010, for failure to state a claim since federl court could not review

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state child support decision); 2) East v. County of San Bernardino, et al., 5:10-cv-01381-UA -E (PC)

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(C.D. Cal.) (dismissed September 21, 2010, for failure to state a claim and defendants entitled to

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immunity); 3) East v. Gidcumb, et al., 5:09-cv-01105-UA-E (PC) (C.D. Cal.) (dismissed June 17,

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2009, for failure to state a claim under Heck)3; 4) East v. Pace, et al., 5:09-cv-01810-UA-E (PC)

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(C.D. Cal.) (dismissed October 1, 2009, for failure to state a claim under Heck and because many

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of the defendants were immune); 5) East v. San Bernardino County, 5:09-cv-02224-UA-E (PC)

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(C.D. Cal.) (dismissed December 11, 2009, for failure to state a claim under Heck); 6) East v. Hoops,

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5:10-cv-00949-UA-E (PC) (C.D. Cal.) (dismissed July 8, 2010, for failure to state a claim under

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“This subdivision is commonly known as the ‘three strikes’ provision. ‘Strikes’ are prior cases or appeals,
brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious,
or fail[ ] to state a claim’ are generically referred to as ‘strikes.’ Pursuant to § 1915(g), a prisoner with three strikes
or more cannot proceed [in forma pauperis].” Andrews v. King, 398 F.3d 1113, 1116 n.1(9th Cir. 2005).
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Although East v. California Department of Corrections, et al., 1:09-cv-01739-DLB, was dismissed for
failure to state a claim, the Court will not count it as a strike since it is currently pending appeal in appellate case
numbered: 11-16034. See Adepegba v. Hammons. 103 F.3d 383, 387-88 (5th Cir. 1996).
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The Court finds that a dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) counts as a strike
under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on a denial of "the existence of a
cause of action." Heck, 512 U.S. at 489. Additionally, several other courts have held that dismissals under Heck
count as strikes under 28 U.S.C. § 1915(g). See e.g., Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) ("A §
1983 claim which falls under the rule in Heck is legally frivolous."); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.
1995) ("[I]n light of Heck, the complaint was properly dismissed for failure to state a claim.").

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Heck).

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Plaintiff has three or more strikes and became subject to section 1915(g) well before Plaintiff

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filed this action on June 9, 2011. In Plaintiff’s response to the Court’s order to show cause, Plaintiff

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merely asserts that precluding him from IFP status would violate his constitutional rights. The Court

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finds Plaintiff’s arguments in his response to be without merit. Since Plaintiff was not under

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imminent danger of serious physical injury at the time the complaint is filed, the Court finds that

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Plaintiff should be precluded from proceeding in forma pauperis.

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IV. Conclusion

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Based on the foregoing, the Court HEREBY ORDERS:

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1.

To REVOKE Plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g);

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2.

To VACATE the Court’s order on June 9, 2011, directing the Director of the

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California Department of Corrections and Rehabilitation or his designee to deduct

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the $350.00 filing fee from Plaintiff’s trust account whenever the balance exceeds

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$10.00;

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That the Clerk of the Court to serve a copy of this order on (1) the Financial

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Department, U.S. District Court, Eastern District of California, Fresno Division and

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(2) the Director of the California Department of Corrections and Rehabilitation via

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the court's electronic case filing system (CM/ECF); and

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That Plaintiff pay the $350.00 filing fee in full within thirty (30) days or this action
would be dismissed, without prejudice.

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IT IS SO ORDERED.
Dated:
July 22, 2011
emm0d6

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE

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