Franklin v. Villagrana

Filing 35

FINDINGS and RECOMMENDATION Denying Defendant Villagrana's Motion to Revoke Plaintiff's in Forma Pauperis Status 25 , signed by Magistrate Judge Michael J. Seng on 11/10/14. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBERT DUANE FRANKLIN,

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Case No. 1:13-cv-00858-AWI-MJS (PC)

v.

FINDINGS AND RECOMMENDATION
DENYING DEFENDANT VILLAGRANA’S
MOTION TO REVOKE PLAINTIFF’S IN
FORMA PAUPERIS STATUS

R. VILLAGRANA, et al.,

(ECF No. 25)

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Plaintiff,

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Defendants.

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff Robert Duane Franklin is a state prisoner proceeding pro se and in

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19 forma pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. The
20 action proceeds on a retaliation claim against Defendants Ruiz and Villagrana.
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On September 10, 2014, Defendant Villagrana filed a motion to revoke Plaintiff’s

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IFP status. Plaintiff filed objections to the motion. Defendant Villagrana replied to the
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objections. Plaintiff filed a surrreply.1 The matter is deemed submitted for ruling. Local

25 Rule 230(l).
26 I.

LEGAL STANDARD

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The surreply (ECF No. 34) is disregarded because it is unauthorized by the Federal Rules of Civil

28 Procedure and Local Rules and the Court did not request or approve it.
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Section 1915(g) provides that “[i]n no event shall a prisoner bring a civil action . .

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2 . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated
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or detained in any facility, brought an action or appeal in a court of the United States

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
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upon which relief may be granted, unless the prisoner is under imminent danger of

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7 serious physical injury.” 28 U.S.C. § 1915(g).

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ANALYSIS

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Defendant moves to revoke Plaintiff’s IFP status on grounds Plaintiff has three or

10 more “strikes” under § 1915(g). When a prisoner has three or more strikes, the Court
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must revoke the prisoner's IFP status and give him an opportunity to pay the filing fee.3
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Id. (“In no event shall a prisoner bring a civil action or appeal a judgment” if they meet
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the above criteria); accord O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). “Not all
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15 unsuccessful cases qualify as a strike under § 1915(g),” however, and courts must
16 make a “careful evaluation of the order dismissing an action” before determining that the
17 prior action was dismissed because it was frivolous, malicious, or failed to state a claim.
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Andrews, 393 F.3d at 1121. Defendant bears the burden of producing documentary
evidence showing that plaintiff has three or more § 1915(g) strikes. Id. at 1120.

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Notice may be taken of proceedings in other courts, both within and without the

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22 federal judicial system, if those proceedings have a direct relation to matters at issue.
23 Fed. R. Evid. 201; see also Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007),
24 citing Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002). Here, the Court
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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 failed to state a claim. Pursuant to § 1915(g), a prisoner with three strikes or more cannot
proceed in forma pauperis. See Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
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Section 1915(g) contains an exception in cases where an inmate is “under imminent danger of serious
physical injury.”

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1 takes notice of the three prior dismissed actions and two prior dismissed appeals
2 referenced in the materials Defendant submitted. The Court analyzes each to see if it
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was dismissed as frivolous, malicious, or for failing to state a claim.

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A.

Franklin v. May, et al., U.S.D.C. E.D. Cal. Case No. 2:11-cv-1012

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1.

Trial Court Dismissal

This complaint was dismissed for “failure to state a claim” on March 27, 2012.

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Defendant points out the dismissal is on its face a strike under § 1915(g). Plaintiff

10 concedes the dismissal but argues the trial court erred in dismissing the case for failure
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to state a claim.
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The undersigned finds this dismissal was final prior to the date Plaintiff filed this
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action and that it counts as a strike.
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Appeal

Plaintiff was denied IFP status by the appeals court because it found the appeal

17 to be frivolous. He was ordered to pay the filing fee and show cause why the lower court
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decision should not be affirmed. Plaintiff did not respond and the appeal was dismissed
for failure to respond to the appellate court’s order.

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Defendant argues denial of IFP on appeal was tantamount to a determination the

22 appeal was frivolous. Plaintiff argues that the appeal is not a strike because the
23 appellate court merely affirmed the trial court dismissal and did not find an independent
24 § 1915(g) basis to dismiss. He also notes that since his records from that action have
25 been destroyed, he is unable to object properly to Defendant’s motion.
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The undersigned finds the appeal dismissal counts as a strike. The district court
revoked Plaintiff’s IFP status on appeal because the appeal “was frivolous and not

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1 taken in good faith.” (See ECF No. 25-3 at 37:24.) The appeals court denied IFP on
2 appeal on grounds the appeal was “frivolous” and ordered the filing fee paid.”4 (See Id.
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at 40-41.) The appeal was dismissed on September 10, 2012 for failure to respond to

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the order to pay fees. (Id. at 43.)
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Dismissal of the appeal constitutes a strike. Rupe v. Cate, 2012 WL 2317557 at

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7 *2-*3 (E.D. Cal. June 18, 2012), citing O’Neal, 531 F.3d at 1152; see also Winding v.
8 Sparkman, 423 Fed.Appx. 473, 474 (5th Cir. 2011) (dismissal of an action and a
9 subsequent appeal of the dismissal each count as a strike if supported by an
10 independent § 1915(g) basis).
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Accordingly, Plaintiff has two strikes as a result of his trial court proceeding and
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appeal in the May matter.
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B.
Franklin v. Dudley, U.S.D.C. E.D. Cal. Case No. 2:07-cv-22595
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1.

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Trial Court Dismissal

On September 30, 2011, the trial court granted summary judgment in favor of

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17 defendant Dudley based on a lack of evidence to support the claim and a qualified
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immunity defense, and the matter was dismissed.

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Defendant argues this dismissal is a strike because granting judgment because

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of lack of evidence was tantamount to dismissal for failure to state a claim, and

22 upholding the qualified immunity defense was the equivalent of dismissal of a frivolous
23 claim.
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Under the Prison Litigation Reform Act, IFP appeal may not be taken if the trial court “certifies in writing

27 that it is not taken in good faith.” 28 U.S.C.A. § 1915(a)(3); see Andrews, 398 F.3d 1113 at 1121 (for §
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1915(g) purposes, a case “is frivolous if it is of little weight or importance: having no basis in law or fact.”)
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Referred to herein as the “2007 Dudley” matter.

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Plaintiff responds that this action survived a Rule 12(b)(6) motion to dismiss, and

2 that the subsequent disposition cannot count as a strike because it was by summary
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judgment.

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The undersigned finds the case was not dismissed on an explicitly § 1915(g)
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basis. It thus does not count as a strike. The matter was dismissed on summary

7 judgment because (1) Plaintiff “failed to establish any triable issues of material fact as to
8 whether [defendant] violated his Eighth Amendment rights” (see ECF No. 25-3 at 8:139 15); and (2) Plaintiff filed to establish “any constitutional violation.” (Id. at 9:13-15.) A
10 summary judgment dismissal can qualify as a strike where a § 1915(g) basis is explicitly
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stated. Blakely v. Wards, 738 F.3d 607, 613 (4th Cir. 2013). Here, the dismissal does
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not disclose on its face any § 1915(g) ground. It is not a strike. See Barela v. Variz, 36
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F.Supp.2d. 1254, 1259 (S.D. Cal. 1999) (dismissal on summary judgment for Plaintiff’s
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15 failure to present sufficient evidence not a strike); see also Ball v. Famiglio, 726 F.3d
16 448, 463 (3d Cir. 2013) (dismissal based on immunity of the defendant is not a strike
17 unless the order dismissing explicitly states a § 1915(g) ground as the basis for
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dismissal).
Furthermore, a strike accrues only if the entire action or appeal is dismissed

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explicitly on a § 1915(g) ground, or is dismissed pursuant to a statutory provision or rule
that is limited solely to dismissals on such grounds. Byrd v. Shannon, 715 F.3d 117, 126

23 (3d Cir. 2013). Neither is the case here.
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2.

Appeal

Plaintiff’s appeal was voluntarily dismissed on June 1, 2012. (See ECF No. 25-3
at 11.) Defendant does not appear to argue that voluntary dismissal of the appeal is

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1 independently a § 1915(g) strike. A voluntary dismissal is not a strike. 28 U.S.C. §
2 1915(g).
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For the reasons stated, the trial court proceeding and appeal in the 2007 Dudley

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matter did not result in any strikes.
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C.

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Franklin v. Dudley et al., U.S.D.C. E.D. Cal. Case No. 2:08-cv-12236

On February 4, 2010, the trial court granted defendant’s Rule 12(b)(6) motion to

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8 dismiss, on grounds of “failure to state a claim for which relief can be granted,” two of
9 Plaintiff’s three claims in the case, i.e., his money damages claims under the Americans
10 with Disability Act and under the Rehabilitation Act. (See ECF No. 25-3 at 15:15-16.)
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On September 27, 2012, the remaining medical indifference claim was dismissed
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on summary judgment “because it was precluded from relitigation under the doctrine of
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collateral estoppel.” (Id. at 21:20-21.) Defendant argues this dismissal counts as a strike
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15 because it is tantamount to dismissal of a frivolous claim and for failure to state a claim.
Plaintiff argues this dismissal is not an independent § 1915(g) strike because (1)

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17 the action, filed at the direction of the Dudley trial court, is the same case as the above
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2007 Dudley action, and (2) a dismissal on summary judgment cannot count as a strike.

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Defendant responds that the 2007 and 2008 Dudley matters were separate

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actions and that dismissal on summary judgment, based on independent § 1915(g)

22 grounds, is a strike.
The undersigned finds the 2008 Dudley matter, dismissed because it was barred

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24 by collateral estoppel, (see ECF 25-3 at 22:1-2), is not a strike. As noted, a summary
25 judgment dismissal can qualify as a strike where the express basis for dismissal is
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within § 1915(g). Blakely, 738 F.3d at 613. However, this is not the case here. Dismissal

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Referred to herein as the “2008 Dudley” matter.

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1 of a claim on dispositive motion based on collateral estoppel is not dismissal on an
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ruling in the 2007 Dudley matter.

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Additionally, a case is not a strike where some claims are dismissed for failure to
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state a claim and the remaining claims are resolved on the merits. Turley v. Gaetz, 625

7 F.3d 1005, 1013 (7th Cir. 2010); see also Byrd, 715 F.3d at 126 (a strike accrues only if
8 the entire action or appeal is dismissed on a § 1915(g) ground). For reasons stated, the
9 claims in the 2008 Dudley matter were not all dismissed on § 1915(g) grounds.
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Accordingly, the 2008 Dudley matter did not result in any strikes.

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D.

Imminent Harm

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Given that the Plaintiff had not accumulated three or more strikes at the time this
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action was initiated, the Court declines to reach the issue of imminent harm and

15 expresses no opinion thereon.
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CONCLUSIONS AND RECOMMENDATION

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The undersigned concludes Plaintiff’s IFP status should not be revoked because

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Defendant has not demonstrated that Plaintiff had accrued 3 or more strikes at the time
this action was initiated. 28 U.S.C. § 1915(g); Andrews, 398 F.3d at 1120.

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Based on the foregoing, it is HEREBY RECOMMENDED that Defendant’s motion

22 to revoke Plaintiff's IFP status (ECF No. 25) should be DENIED.
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These Findings and Recommendation will be submitted to the United States

24 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. §
25 636(b)(l). Within fourteen (14) days after being served with these Findings and
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Recommendation, the parties may file written objections with the Court. The document
should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.”

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A party may respond to another party’s objections by filing a response within

2 fourteen (14) days after being served with a copy of that party’s objections.
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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 F.2d 1153,

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1157 (9th Cir. 1991).

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8 IT IS SO ORDERED.
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Dated:

November 10, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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