Chappell v. Stankorb, et al.

Filing 42

FINDINGS and RECOMMENDATIONS Regarding Defendants' 31 Motion to Revoke Plaintiff's In Forma Pauperis Status signed by Magistrate Judge Dennis L. Beck on 02/14/2014. Referred to Judge O'Neill; Objections to F&R due by 3/20/2014. (Flores, E)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 REX CHAPPELL, 12 13 14 15 Plaintiff, vs. T. STANKORB, et al., Defendants. ) ) ) ) ) ) ) ) ) ) 1:11cv01425 LJO DLB PC FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS (Document 31) THIRTY-DAY DEADLINE 16 17 Plaintiff Rex Chappell (“Plaintiff”) is a prisoner proceeding pro se and in forma pauperis 18 in this civil rights action pursuant to 28 U.S.C. § 1983. Plaintiff filed this action on August 25, 19 2011. He filed a First Amended Complaint on June 25, 2012. This action is proceeding on the 20 21 22 following claims: (1) an Eighth Amendment conditions of confinement against Defendants Holland, Reed, Stankorb, Miner, Bryant, Haak, Matzen and Frazier based on their classification and housing of Plaintiff as a member of the BGF; and (2) an Eighth Amendment conditions of 23 confinement against Defendants Stankorb and Frazier based on their disclosure that Plaintiff was 24 25 26 27 28 a child molester to other inmates. On October 25, 2013, Defendants filed the instant Motion to Revoke Plaintiff’s in forma pauperis status under 28 U.S.C. § 1915(g). Plaintiff filed an opposition on January 31, 2014. Defendants did not file a reply. The matter is deemed submitted pursuant to Local Rule 230(l). 1 1 A. 2 3 4 LEGAL STANDARD The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011); Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007). Pursuant to the PLRA, the 5 in forma pauperis statute was amended to include section 1915(g), a non-merits related screening 6 7 8 9 device which precludes prisoners with three or more “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at 1050. The statute provides that “[i]n no event shall a prisoner bring a civil action . . . under this section 10 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 11 brought an action or appeal in a court of the United States that was dismissed on the grounds that 12 it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the 13 prisoner is under imminent danger of serious physical injury.” 28 U.S. C. § 1915(g). 14 15 16 17 18 In seeking the revocation of Plaintiff’s in forma pauperis status, Defendants bear the burden of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005). If Defendants meet their initial burden, Plaintiff must then demonstrate the dismissals should not count as 19 strikes. Andrews, 398 F.3d at 1120. 20 21 B. Defendants contend that Plaintiff, prior to filing this action, had at least four dismissals 22 23 24 which count as strikes under section 1915(g). Defendants have submitted the relevant court records for each of the four cases.1 Andrews, 493 F.3d at 1120. Specifically, Defendants cite to the following cases: Chappell v. Gomez, et al., Case No. 25 26 DISCUSSION 3:94-cv-01520-FMS (N.D. Cal.); Chappell v. Rios, et al., Case No. 2:99-cv-00893-FCD-JFM 27 1 28 The Court may take judicial notice of court records in other cases, and Defendants’ request for judicial notice of these records is therefore granted. United States v. Howard, 381 F.3d 873, 876 n. 1 (9th Cir. 2004). 2 1 2 (E.D. Cal.); Chappell v. Reed, et al., Case No. 2:02-cv-01706-GEB-JFM (E.D. Cal.); and Chappell v. Neubarth, et al., Case No. 1:06-cv-01378-OWW-SKO (E.D. Cal.). 3 4 5 In his opposition, Plaintiff concedes that after the order in Chappell v. Fleming, et al., Case No. 2:12-cv-0234-MCE-AC (E.D. Cal.), he has three strikes. In Fleming, the Court issued Findings and Recommendations on May 17, 2013, granting the defendants’ motion to revoke in 6 7 8 9 forma pauperis status. The court relied on Gomez, Reed, and Neubarth. The Court adopted the Findings and Recommendations on July 25, 2013. Plaintiff paid the filing fee before the order adopting issued. Therefore, Plaintiff states that he does not oppose Defendants’ motion to revoke his in 10 11 forma pauperis status. Although Plaintiff contends that Rios is not a strike, he also correctly 12 notes that even without Rios, he has three strikes under section 1915(g). 2 13 C. FINDINGS AND RECOMMENDATIONS 14 Accordingly, based on the above, the Court recommends that: 15 1. Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis be GRANTED; 2. Plaintiff’s in forma pauperis status be REVOKED; 3. The Court’s October 6, 2011, order granting Plaintiff’s motion to proceed in 16 17 18 forma pauperis be VACATED; 19 4. Plaintiff be REQUIRED to pay the $400.00 filing fee within thirty (30) days after 20 21 these Findings and Recommendations are adopted; and 5. 22 23 Defendants be REQUIRED to file a responsive pleading within fifteen (15) days after electronic notification that Plaintiff has paid the filing fee. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 26 thirty (30) days after being served with these Findings and Recommendations, the parties may 27 Plaintiff does not address Defendants’ arguments related to whether he was in imminent danger of serious physical injury at the time the action was filed, and based on his opposition, it appears that he concedes this point. 3 2 28 1 file written objections with the Court. The document should be captioned “Objections to 2 Magistrate Judge’s Findings and Recommendations.” Replies may be filed with fourteen (14) 3 4 days of service of objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 5 F.2d 1153 (9th Cir. 1991). 6 7 IT IS SO ORDERED. 8 Dated: 9 /s/ Dennis February 14, 2014 L. Beck UNITED STATES MAGISTRATE JUDGE 10 11 DEAC_Signature-END: 3b142a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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