Kasey F. Hoffman v. Pulido et al

Filing 7

ORDER to SHOW CAUSE Why In Forma Pauperis Status Should Not Be Denied 1 , 2 , signed by Magistrate Judge Sheila K. Oberto on 2/15/2018: 21-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KASEY F. HOFFMAN,
Plaintiff,

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v.

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PULIDO, et al.,

ORDER TO SHOW CAUSE WHY IN
FORMA PAUPERIS STATUS SHOULD
NOT DENIED
(Docs. 1, 2)

Defendants.

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Case No. 1:18-cv-00209-SKO (PC)

TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, Kasey F. Hoffman, is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint in this action on February 9, 2018.

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On that same date, Plaintiff filed an application to proceed in forma pauperis, which is before the

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Court. (Doc. 2.)

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A.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs proceedings in forma pauperis. “In no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while

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incarcerated 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 upon

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which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g).

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B.

DISCUSSION

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The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

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873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of three of Plaintiff’s prior lawsuits:
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(1) Hoffmann v. Jones, 2:15-cv-01735-MCE-KJN, dismissed as duplicative1 of 2:15-cv-1729

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CKD P on September 28, 2015; (2) Hoffmann v. California Correctional Health Care Services et

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al., 2:16-cv-01691-MCE-AC, dismissed for failure to state a cognizable claim on April 19, 2017;

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and (3) Hoffmann v. Growden et al., 2:15-cv-01431-EFB, dismissed for failure to state a

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cognizable claim on May 4, 2017.
The Court notes that the Magistrate Judge dismissed Hoffmann v. Growden et al., 2:15-cv-

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01431-EFB, based solely on Plaintiff’s consent under 28 U.S.C. §636(c)(1). The Ninth Circuit

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recently held that magistrate judges do not have jurisdiction over a case until all parties (both

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served and unserved) have consented to magistrate judge jurisdiction. Williams v. King, 875

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F.3d. 501 (9th Cir. 2017). “An error in interpreting a statutory grant of jurisdiction is not,

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however, equivalent to acting with total want of jurisdiction and does not render the judgment a

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complete nullity.” Jones v. Giles, 741 F.2d 245, 248 (9th Cir. 1984) (citing Chicot County

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Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 376-77 (1940). The dismissal of Plaintiff’s

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prior case by the Magistrate Judge is still properly counted as a strike for purposes of the PLRA

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since it has become final. See Chicot, at 376-77 (holding that decision errantly entertained under

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jurisdiction conferred by statute that was subsequently declared invalid could “not be assailed

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collaterally”) and at 375 (holding parties who had the opportunity to raise the question of

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invalidity of jurisdiction are bound by rulings thereunder because they failed to raise it) (citing

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Cromwell v. County of Sac, 94 U.S. 351, 352 (1876); Case v. Beauregard, 101 U.S. 688, 692

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(1879); Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 319, 325 (1927); Grubb v. Public

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Utilities Commission, 281 U.S. 470, 479 (1930))).
All of Plaintiff’s actions noted above were dismissed before February 9, 2018, when

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Plaintiff filed the present action. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is
precluded from proceeding in forma pauperis in this action unless at the time the Complaint was
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Duplicative lawsuits filed by a plaintiff proceeding in forma pauperis are subject to dismissal as either frivolous or
malicious under 28 U.S.C. § 1915(e). See e.g., Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir.1995);
McWilliams v. State of Colo., 121 F.3d 573, 574 (10th Cir.1997); Pittman v. Moore, 980 F.2d 994, 994-95 (5th
Cir.1993); Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988); see also Denton v. Hernandez, 504 U.S. 25, 30
(1992) (recognizing Congress’s concern that “a litigant whose filing fees and court costs are assumed by the public,
unlike a paying litigant, lacks an economic incentive to refrain from filing frivolous, malicious, or repetitive
lawsuits”).

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filed, he was under imminent danger of serious physical injury.
The Court has reviewed Plaintiff’s Complaint in this action and finds that he does not

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meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

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2007). Plaintiff alleges he was denied Kosher meals, his religious rights were violated, and that

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he was subjected to a retaliatory disciplinary hearing because he complained about the violations

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of his religious rights. These allegations do not establish that Plaintiff was placed under

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imminent danger of serious physical injury. Further, since Plaintiff alleges that the false

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disciplinary hearing caused a forfeiture of good-time credits, he must comply with the favorable

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termination rule before he may proceed on the claim regarding the retaliatory disciplinary hearing

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in an action under § 1983. See Heck v. Humphrey, 512 U.S. 477 (1994); Edwards v. Balisok, 520

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U.S. 641 (1997); Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert denied, (U.S.

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Jan. 9, 2017) (No. 16-6556).
Based on the foregoing, Plaintiff is precluded from proceeding in forma pauperis in this

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action. Andrews, 493 F.3d at 1056-57.

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C.

ORDER
Accordingly, it is HEREBY ORDERD to that within twenty-one (21) days of the date of

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service of this order, Plaintiff must show cause why recommendation should not issue to deny

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Plaintiff’s in forma pauperis application and to dismiss this action without prejudice to refiling

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with prepayment of the full filing fee.

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IT IS SO ORDERED.

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Dated:

February 15, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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