Dawson v. Commissioner of the Department of Corrections and Rehabilitation et al

Filing 19

FINDINGS and RECOMMENDATIONS Regarding Defendants' Motion to Revoke Plaintiff's in Forma Pauperis Status 14 , signed by Magistrate Judge Dennis L. Beck on 7/22/16: Thirty-Day Objection Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ISSAC DA’BOUR DAWSON,

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Plaintiff,

FINDINGS AND RECOMMENDATIONS
REGARDING DEFENDANTS’ MOTION TO
REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS
(Document 14)

Defendants.

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No. 1:15-cv-01867 DAD DLB PC

THIRTY-DAY OBJECTION DEADLINE

v.
CDCR, et al.,

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Plaintiff Issac Da’Bour Dawson (“Plaintiff”), a state inmate in the custody of the

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California Department of Corrections and Rehabilitation (“CDCR”), is proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s December 14,

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2015, complaint states the following claims: (1) a Fourth Amendment claim against Defendants

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Johnson, Guzman, Gonzales and Sheldon; and (2) a First Amendment retaliation claim against

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Defendants Guzman, Gonzales and Marsh.
On June 15, 2016, Defendants Johnson, Gonzales, Guzman and Sheldon filed the instant

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motion to revoke Plaintiff’s in forma pauperis status.1 Plaintiff did not file an opposition. The

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motion is ready for decision pursuant to Local Rule 230(l).

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Defendant Marsh has not appeared in this action.

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A.

LEGAL STANDARD

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The Prison Litigation Reform Act of 1995 (PRLA) was enacted “to curb frivolous

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prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir.2011).

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28 U.S.C. § 1915(g) provides that “[I]n no event shall a prisoner bring a civil action ... under this

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section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any

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facility, brought an action or appeal in a court of the United States that was dismissed on the

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grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted,

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unless the prisoner is under imminent danger of serious physical injury.”

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In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005), the Ninth Circuit explained,

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“[t]he PLRA does not define the terms ‘frivolous,’ or ‘malicious,’ nor does it define dismissals

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for failure to ‘state a claim upon which relief could be granted’... We have held that the phrase

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‘fails to state a claim on which relief may be granted,’ as used elsewhere in § 1915, ‘parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).” In defining the terms frivolous and

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malicious, the Andrews court held, “[W]e look to their ‘ordinary, contemporary, common

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meaning.’... Thus, a case is frivolous if it is ‘of little weight or importance: having no basis in law

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or fact’... A case is malicious if it was filed with the ‘intention or desire to harm another’”.

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Andrews, 398 F.3d at 1121 (internal quotations and citations omitted). To determine whether a

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dismissal qualifies as a strike, a “reviewing court looks to the dismissing court’s action and the

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reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citing King, 398

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F.3d at 1121), cert. denied, 135 S. Ct. 57 (2014).

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In seeking revocation of Plaintiff’s in forma pauperis status, Defendants bear the burden

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of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g),

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which requires the submission of evidence sufficient to demonstrate at least three prior qualifying

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dismissals. Andrews, 398 F.3d at 1120.

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Once Defendants meet their initial burden, the burden shifts to Plaintiff to explain why a

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prior dismissal should not count as a strike. King, 398 F.3d at 1120. If Plaintiff fails to meet that

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burden, his in forma pauperis status should be revoked under § 1915(g). King, 398 F.3d at 1120.

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B.

Defendants argue that Plaintiff’s in forma pauperis status should be revoked because, at

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DISCUSSION

the time this action was filed, Plaintiff had the following strikes:
Dawson v. Reyes, No. 2:12-cv-01134 DAD (E.D. Cal.)2

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This case was dismissed on July 5, 2012, for failure to state a claim. By its plain

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language, this dismissal counts as a strike. King, 398 F.3d at 1120.

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2.

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On July 7, 2012, the Court screened Plaintiff’s complaint and dismissed it with leave to

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Dawson v. Sacramento County Jail, No. 2:12-cv-00963-JAM-GGH (E.D. Cal.)

amend for his failure to identify any named defendants and for failing to state a “colorable claim.”

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ECF No. 15-1, at 15. Plaintiff was ordered to file an amended complaint within twenty-eight

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days. After Plaintiff failed to file an amended complaint, the Court issued Findings and

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Recommendations on August 27, 2012, recommending that the action be dismissed without

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prejudice because mail had been returned to the Court and he failed to update his address. ECF

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No. 15-1, at 18-19. The Findings were adopted on October 10, 2012, and the action was

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dismissed without prejudice. ECF No. 15-1, at 20-21.

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This dismissal was ultimately based on Plaintiff’s failure to keep the Court apprised of his

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current address, though the underlying dismissal was for failure to state a claim. The Ninth

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Circuit has not addressed, in a published opinion, whether dismissals of this kind count as a strike

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under § 1915(g). In an unpublished opinion, Baskett v. Quinn, 225 F. App’x 639 (9th Cir. 2007),

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cited by Defendants, the Ninth Circuit upheld a district court order finding that a prior dismissal

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for failure to file an amended complaint constituted a strike.

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Courts within this district have reached differing results in determining whether a

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dismissal after a plaintiff fails to amend counts as a strike. However, even where the court finds a

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strike, the rationale does not support a finding under these facts, where the action was dismissed

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after Plaintiff failed to update his address.

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Defendants’ request for judicial notice is GRANTED. The Court may take judicial notice of court records in other
cases. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004).

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In the most recent case in this district, Bontemps v. Sotak, 2016 WL 1339577 (E.D. Cal.

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2016), the Court held that the Ninth Circuit’s decision in Knapp v. Hogan, 738 F.3d 1106, 1108

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(9th Cir. 2013), answered the question of whether a dismissal for failure to amend and failure to

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prosecute counts as a strike under section 1915(g). At issue in Knapp was whether the dismissal

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of an action for failure to comply with Federal Rule of Civil Procedure 8(a)’s “short and plain

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statement” requirement constituted a strike. The Ninth Circuit held that it did, finding that “after

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an incomprehensible complaint is dismissed under Rule 8 and the plaintiff is given, but fails, to

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take advantage of the leave to amend, ‘the judge [is] left with [ ] a complaint that, being

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irremediably unintelligible, [gives] rise to an inference that the plaintiff could not state a claim.’”

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Knapp, 738 F.3d at 1110 (internal citations omitted). Relying on the reasoning in Knapp, the

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Bontemps Court held that the plaintiff’s subsequent failure to take advantage of the leave to

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amend gave “rise to an inference that [he] could not state a claim.” Bontemps, 2016 WL

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1339577, *3.

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Here, however, the Court’s dismissal was based on his failure to update his address. This
does not necessarily support the same inference, i.e., that Plaintiff could not state a claim.
For these reasons, the Court finds that Dawson v. Sacramento County Jail does not count
as a strike.

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3.

Dawson v. Sacramento Police Dep’t, No. 2:14-cv-1494-TLN-KJN (E.D. Cal.)

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On July 30, 2014, the Court issued Findings and Recommendations that Plaintiff’s action

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be dismissed without prejudice as barred under Heck v. Humphrey, 512 U.S. 477 (1994). ECF

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No. 15-1, at 27-30. The Court adopted the Findings and Recommendations on November 6,

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2014, and dismissed the action without prejudice. ECF No. 15-1, at 30-32.

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Courts in this Circuit generally find that a dismissal based on Heck is a strike for purposes

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of section 1915(g). See Duncan v. Ramirez, 2013 WL 3359302 (N.D. Cal. 2013); Price v.

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Cunningham, 2011 WL 864677 (E.D. Cal. 2011). Indeed, the Supreme Court in Heck stated that

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its ruling was based on a denial of “the existence of a cause of action” which implies the failure to

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state a claim. Heck, at 489.

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This action therefore counts as a strike.
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C.

FINDINGS AND RECOMMENDATIONS
As Defendants have submitted evidence of only two strikes, the Court finds that the

motion to revoke Plaintiff’s in forma pauperis status should be DENIED.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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thirty (30) days after being served with these Findings and Recommendations, the parties may file

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written objections with the Court. The document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Replies may be filed within fourteen (14) days of

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service of objections. The parties are advised that failure to file objections within the specified

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time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 843 (9th Cir.

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2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

July 22, 2016

L. Beck

UNITED STATES MAGISTRATE JUDGE

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