Pina v. Kernan et al
Filing
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ORDER ADOPTING 37 Findings and Recommendations and DENYING 33 Motion to Revoke In Forma Pauperis Status signed by District Judge Dale A. Drozd on 10/22/2019. (Jessen, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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PABLO P. PINA,
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No. 1:17-cv-01681-DAD-SAB (PC)
Plaintiff,
v.
SCOTT KERNAN, et al.,
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
MOTION TO REVOKE IN FORMA
PAUPERIS STATUS
Defendants.
(Doc. Nos. 33, 35, 37)
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Plaintiff Pablo P. Pina is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983. The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
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On May 9, 2019, defendants Davey, J.C. Garcia, Hoggard, Susan Hobbard, Scott Kernan,
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Leshniak, Peterson, and Urban filed a motion to revoke plaintiff’s in forma pauperis status under
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28 U.S.C. § 1915(g). (Doc. No. 33.) On June 17, 2019, plaintiff filed a motion in opposition to
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defendants’ motion to revoke his in forma pauperis status and a request to conduct limited
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discovery. (Doc. No. 35.) On July 10, 2019, the assigned magistrate judge issued findings and
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recommendations recommending that defendants’ motion to revoke plaintiff’s in forma pauperis
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be denied. (Doc. No. 37.) On July 29, 2019, defendants filed objections to those findings and
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recommendations. (Doc. No. 38.)
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In their objections to the findings and recommendations, defendants argue that the
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magistrate judge mistakenly determined that the prior dismissal of one of plaintiff’s previous
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lawsuits, Pina v. Dougherty, et al., Case No. 3:99-cv-397 (N.D. Cal. 1999), did not count as a
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strike, even though the underlying basis for that order of dismissal was plaintiff’s failure to state a
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claim. (Doc. No. 38 at 3.)
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this
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court has conducted a de novo review of this case. Having carefully reviewed the entire file,
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including defendants’ objections, the court finds the findings and recommendations to be
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supported by the record and proper analysis. The magistrate judge properly concluded that the
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dismissal without prejudice in Pina v. Dougherty, et al. was based upon the district court’s
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determination that plaintiff could not proceed with his action for damages unless and until his
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criminal conviction was set aside under the holding in Heck v. Humphrey, 512 U.S. 477 (1994),
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but also raised several other claims including one for injunctive relief. (Doc. No. 37 at 6–7.)
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Accordingly, Pina v. Dougherty was not dismissed in its entirety for a qualifying reason under §
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1915(g). Harris v. Harris, 935 F.3d 670, 674 (9th Cir. 2019) (“We must also evaluate whether all
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the claims in a given suit satisfy the enumerated grounds for strikes, and partial dismissals of even
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one claim for a non-qualifying reason will save an entire case from constituting a strike.”);
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Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016) (“When we
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are presented with multiple claims within a single action, we assess a PLRA strike only when the
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‘case as a whole’ is dismissed for a qualifying reason under the Act.”); Andrews v. Cervantes, 493
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F.3d 1047, 1054 (9th Cir. 2007), as amended (July 5, 2007)).
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Accordingly,
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1. The findings and recommendations issued on July 10, 2019 (Doc. No. 37) are adopted
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in full; and
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2. Defendants’ motion to revoke plaintiff’s in forma pauperis status (Doc. No. 33) is
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denied.
IT IS SO ORDERED.
Dated:
October 22, 2019
UNITED STATES DISTRICT JUDGE
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