Franklin v. Villagrana
Filing
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ORDER Adopting 35 FINDINGS AND RECOMMENDATION DENYING Defendant Villagrana's 25 Motion to Revoke Plaintiff's In Forma Pauperis Status signed by District Judge Anthony W. Ishii on 12/23/2014. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ROBERT DUANE FRANKLIN,
Plaintiff,
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v.
R. VILLAGRANA, et al.,
Defendants.
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Case No. 1:13-cv-00858-AWI-MJS (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATION DENYING
DEFENDANT VILLAGRANA’S MOTION TO
REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS
(ECF NOS. 25, 35)
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Plaintiff Robert Duane Franklin is a state prisoner proceeding pro se and in forma
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pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. On November
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10, 2014, the magistrate judge issued findings and recommendation that Defendant
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Villagrana’s motion to revoke Plaintiff’s IFP status (ECF No. 25) should be denied. (ECF
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No. 35 at 7:21-22.) Defendant filed objections to the findings and recommendation on
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November 19, 2014.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has
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conducted a de novo review of this case. Having carefully reviewed the entire file, the
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Court finds the findings and recommendation to be supported by the record and by proper
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analysis.
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The objections do not raise an issue of law or fact under the findings and
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recommendation and there is no need to modify the findings and recommendation based
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on the objections.
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Defendant objects the magistrate judge erred in finding that dismissal of the 2008
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Dudley action (“Dudley”) does not qualify as a strike. Defendant, conceding that dismissal
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of a claim on the merits is not a strike, argues that Dudley was not dismissed on the merits
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but rather because the claim had been previously litigated and thus collaterally estopped.
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Defendant points out the Dudley court, in its dismissal order, did not consider the “issue of .
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. . lack of submission of evidence.” (ECF No. 36 at 18-21.) Defendant argues the Dudley
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dismissal is the equivalent of a dismissal for failure to state a claim and thus a strike. This
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argument is unavailing.
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The Dudley court did not mention Section 1915(g) in its dismissal order. It is not
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apparent that the Dudley court based its dismissal on Section 1915(g). A dismissal does
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not count as a strike merely because a Section 1915(g) basis is suspected. See e.g.,
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Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (dismissal must be on grounds
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enumerated in Section 1915(g) for a strike to be incurred). Moreover, the utilization of
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summary judgment to develop claim preclusion facts suggests a disposition on the merits.
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See e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (summary judgment
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determines whether there are genuine issues for trial).
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The cases Defendant cites in his objections are not authority that a grant of
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summary judgment based on collateral estoppel is a strike under 28 U.S.C. §1915(g). See
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Martinez v. U.S., 812, F.Supp.2d 1052, 1057 (C.D. Cal. 2010), citing Daniels v. Woodford,
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2008 WL 2079010, *6-7 (C.D. Cal. May 13, 2008) (a case resolved by summary judgment
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does not fall within the plain language of Section 1915(g) as it is not equivalent to a
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dismissal on the grounds that the action is frivolous, malicious, or fails to state a claim upon
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which relief may be granted); Id. at 1057 (action dismissed as duplicative is not counted as
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strike).
Defendant also objects that a summary judgment dismissal need not explicitly state
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a
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U.S.C.
§ 1915(g) basis in
order for a
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strike
to
accrue.
However,
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a dismissal is not a strike unless it is on a Section 1915(g) basis. See e.g., Hafed v.
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Federal Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir. 1011) (ambiguous dismissal
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order counts as strike where Section 1915(g) grounds are discussed and dismissal clearly
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fits within Section 1915(g)). The Dudley dismissal order was based on claim preclusion.
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Nothing suggests the Dudley court considered Section 1915(g) and based its dismissal
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thereon.
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(dismissal counts as a strike if made because the action if frivolous, malicious, or fails to
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state a claim).
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See e.g., Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011)
Defendant’s objections lack merit.
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Accordingly, it is HEREBY ORDERED that:
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2014 (ECF No. 35), in full, and
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The Court adopts the findings and recommendation filed on November 10,
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Defendant Villagrana’s motion to revoke Plaintiff’s IFP status (ECF No. 25) is
denied.
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IT IS SO ORDERED.
Dated: December 23, 2014
SENIOR DISTRICT JUDGE
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