East v. Phillips

Filing 4

ORDER DENYING Plaintiff's Motion to Proceed IFP Pursuant Section 1915(g) and DISMISSING Action Without Prejudice 1 , 2 , signed by Chief Judge Anthony W. Ishii on 8/1/11. (CASE CLOSED)(Hellings, J)

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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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Plaintiff,

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CASE NO: 1:11-cv-01178-AWI-GBC (PC)
ORDER DENYING PLAINTIFF MOTION TO
PROCEED IFP PURSUANT SECTION 1915(g)
AND DISMISSING ACTION WITHOUT
PREJUDICE

v.
L. PHILIPS,

(Docs. 1, 2)
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Defendant.
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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. On July 18, 2011, Plaintiff
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filed this civil rights action pursuant to 42 U.S.C. § 1983 and motioned to proceed IFP. (Docs. 1,
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2).
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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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two prior actions dismissed as frivolous or for failing to stating a cognizable claim under section

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

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(dismissed August 5, 2010, for failure to state a claim since federal court could not review state child

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

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

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immunity).

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The Court finds that a dismissal pursuant to Heck v. Humphrey, 512 U.S. 477 (1994) counts

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as a strike under 28 U.S.C. § 1915(g). The Supreme Court in Heck stated its ruling was based on

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a denial 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). See e.g.,

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Hamilton v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which falls under the rule in

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Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir. 1995) (“[I]n light of Heck,

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the complaint was properly dismissed for failure to state a claim.”). After careful review of the

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dismissal orders, the Court takes judicial notice that Plaintiff has four prior actions dismissed under

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Heck for not stating a cognizable claim under section 1983. Those cases are: 1) East v. Gidcumb,

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et al., 5:09-cv-01105-UA-E (PC) (C.D. Cal.) (dismissed June 17, 2009, for failure to state a claim

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under Heck); 2) East v. Pace, et al., 5:09-cv-01810-UA-E (PC) (C.D. Cal.) (dismissed October 1,

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2009, for failure to state a claim under Heck and because many of the defendants were immune); 3)

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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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East v. San Bernardino County, 5:09-cv-02224-UA-E (PC) (C.D. Cal.) (dismissed December 11,

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2009, for failure to state a claim under Heck); 4) East v. Hoops, 5:10-cv-00949-UA-E (PC) (C.D.

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Cal.) (dismissed July 8, 2010, for failure to state a claim under 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 July 18, 2011. Since Plaintiff was not under imminent danger of serious physical

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injury at the time the complaint is filed, the Court finds that Plaintiff should be precluded from

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proceeding in forma pauperis. Moreover, the Court finds that Plaintiff’s action should be dismissed

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to allow Plaintiff to refile with full payment of the filing fee. See Dupree v. Palmer, 284 F.3d 1234,

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1236 (11th Cir. 2002) (finding that denial of in forma pauperis status under § 1915(g) mandated

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dismissal since a prisoner must pay the filing fee at the time of initiating the suit).

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III.

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Based on the foregoing, the Court HEREBY ORDERS:

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1.

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Conclusion

Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is DENIED pursuant
to 28 U.S.C. § 1915(g); and

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This action is DISMISSED without prejudice (Doc. 1).
IT IS SO ORDERED.

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Dated:
0m8i78

August 1, 2011
CHIEF UNITED STATES DISTRICT JUDGE

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