Dews v. Arlitz et al

Filing 18

ORDER DISMISSING Complaint without Leave to Amend; ORDERED to REVOKE In Forma Pauperis Status, signed by Chief Judge Ralph R. Beistline on 03/19/2015. CASE CLOSED (Martin-Gill, S)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CLARENCE LEON DEWS,
Case No. 1:14-cv-00709-RRB
Plaintiff,
ORDER DISMISSING COMPLAINT
WITHOUT LEAVE TO AMEND

vs.
ASSOCIATE WARDEN T. ARLITZ, et
al.,
Defendants.

Clarence Leon Dews, a state prisoner appearing pro se and in forma pauperis, filed
a civil rights complaint under 42 U.S.C. 1983 against numerous officials employed by the
California Department of Corrections and Rehabilitation (“CDCR”), the Kern County District
Attorney, California Department of Justice, and the California Attorney General. Dews’
complaint arises out of his incarceration at Kern Valley State Prison. Dews is currently
incarcerated at California State Prison-Corcoran. The Court dismissed Dews’ original
Complaint1 and his First Amended Complaint,2 with leave to amend. Pending before this
Court at Docket 17 is a document that appears to be in the form of an attempt to appeal
from, or seek appellate review of, the Order Dismissing First Amended Complaint.3

1

Docket 12.

2

Docket 14.

3

On the caption page, it appears to be a petition for a writ of error addressed to the
Ninth Circuit under the all-writs statute, 28 U.S.C. § 1651. The document also reads like
an appellate brief, not a complaint.
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Dews v. Arlitz, 1:14-cv-00709-RRB – 1

Prisoner pro se pleadings are given the benefit of liberal construction.4 While this
Court must liberally construe papers filed by pro se parties, pro se parties must none-theless follow the applicable rules of practice and procedure.5 The document at Docket 17
does not comply with this Court’s Order Dismissing the First Amended Complaint; indeed,
as noted above, it reads like an appellate brief. Liberally construed, the Court treats it as
the functional equivalent of an election not to amend.6 Accordingly, this action will be
dismissed without leave to amend.7
The Court further notes that in the past three and a half years, in addition to this
case, Dews has filed 11 cases in this district. The Court takes judicial notice of the dockets
in these filings.8
1.

Dews v. Superior Court of State of Calif., 1:11-cv-02050-BAM: Petition for

habeas corpus. Dismissed without prejudice to filing a civil rights action under 42 U.S.C.
§ 1983. No appeal filed.

4

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Porter v. Ollison, 620
F.3d 952, 958 (9th Cir. 2010).
5

King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the
same rules of procedure that govern other litigants.”) (overruled in part on other grounds
in Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012) (en banc)).
6

In so doing, this Court is giving effect to what appears to be Dews’ intent, i.e., to
seek appellate review.
7

Cf. Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (“[W]hen a
district court has already granted a plaintiff leave to amend, its discretion in deciding
subsequent motions to amend is particularly broad.”) (citation and internal quotation marks
omitted)).
8

Fed. R. Evid. 201.

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Dews v. Arlitz, 1:14-cv-00709-RRB – 2

2.

Dews v. Kern Radiology Med. Group, 1:12-cv-00242-AWI-MJS: Prisoner civil

rights case. Dismissed for failure to state a claim. No appeal filed.
3.

Dews v. County of Kern, 1:12-cv-00245-AWI-MJS: Prisoner civil rights case.

Dismissed for failure to state a claim. Appeal pending before the Ninth Circuit.
4..

Dews v. Brown, 1:12-cv-00278-AWI-SKO: Prisoner civil rights case.

Dismissed for failure to state a claim. Affirmed on appeal.
5.

Dews v. Kern Valley State Prison, 1:12-cv-00450-AWI-SKO: Petition for

habeas corpus. Dismissed without leave to amend. No appeal filed.
6.

Dews v. Chen, 1:12-cv-01221-RRB: Prisoner civil rights case. Dismissed for

failure to exhaust administrative remedies. No appeal filed.
7.

Dews v. California Superior Court, Fresno, 1:12-cv-01352-AWI-SAB: Petition

for habeas corpus. Dismissed for failure to challenge the legality or duration of Dews’
confinement. Court of Appeals denied a request for a certificate of appealability.
8.

Dews v. State Water System, 1:12-cv-01398-RRB: Prisoner civil rights case.

Dismissed for failure to exhaust administrative remedies. No appeal filed.
9.

Dews v. Biter, 1:12-cv-01634-LJO-SAB: Petition for habeas corpus.

Dismissed without leave to amend. No appeal filed.
10.

Dews v. Biter, 1:13-cv-00626-AWI-SKO: Petition for habeas corpus.

Dismissed as a successive petition. No appeal filed.
11.

Dews v. Warden, Corcoran State Prison, 1:14-cv-01113-LJO-MJS: Petition

for habeas corpus. Dismissed as a successive petition. No appeal filed.

ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Dews v. Arlitz, 1:14-cv-00709-RRB – 3

ORDER
The Complaint on file herein is hereby DISMISSED without leave to amend.
It appears from the records of this Court that Dews has filed three or more prior
lawsuits that were dismissed for failure to state a cause action. Because it does not appear
that Dews is in any imminent danger, he is not entitled to proceed in forma pauperis.9
Alternatively, this Court, having fully considered the matter finds that reasonable jurists
could not disagree with this Court’s resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve encouragement to proceed
further. Accordingly, any appeal would be frivolous or taken in bad faith.10 Therefore,
Dews’ in forma pauperis status is hereby REVOKED.
The Clerk of the Court is directed to enter final judgment accordingly.
WARNING
In the event Dews seeks further review of this matter in the Court of Appeals, he
must comply with the Federal Rules of Appellate Procedure and the rules adopted
by the Court of Appeals for the Ninth Circuit, including the payment of the filing
fee, unless the Court of Appeals grants him leave to proceed in forma pauperis.
IT IS SO ORDERED this 19th day of March, 2015.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

9

28 U.S.C. § 1915(g); see Andrews v. King, 398 F.3d 1113, 1116 (9th Cir. 2005).

10

28 U.S.C. § 1915(a)(3); see Hooker v. American Airlines, 302 F.3d 1091, 1092
(9th Cir. 2002).
ORDER DISMISSING COMPLAINT WITHOUT LEAVE TO AMEND
Dews v. Arlitz, 1:14-cv-00709-RRB – 4