Benyamini v. Ogbeide et al

Filing 59

ORDER signed by Judge Kimberly J. Mueller on 09/20/12 ordering the findings and recommendations filed 11/22/11 in Benyamini v. Hammer, No. CIV S-11-2317 KJM GGH are adopted in part and denied in part. Plaintiff's 10/12/11 motion to stay 8 in Benyamini v. Hammer, No. CIV S-11-2317 KJM GGH is denied as plaintiff has now stated he wishes to proceed with this action. Plaintiff's 10/18/11 in forma pauperis application 9 in Benyamini v. Hammer, No. CIV S-11-2317 KJM GGH, is granted for the reasons set forth above. Any objections to the court's intent to reopen Benyamini v. Ogbeide, No. CIV S-10-0101 KJM GGH shall be filed within 14 days of the filing of this order and shall not exceed 5 pages. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT BENYAMINI,
Plaintiff,

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vs.

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No. CIV S-10-0101 KJM-GGH P

V. OGBEIDE; et al.,
Defendants.

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ROBERT BENYAMINI,
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Plaintiff,

No. CIV S-11-2317 KJM-GGH P

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vs.
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M.C. HOMMER; et al.,

ORDER

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Defendants.
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I. Benyamini v. Hommer (11-2317)
Plaintiff, a state prisoner proceeding pro se, has filed the second civil rights action

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captioned above seeking relief under 42 U.S.C. § 1983. The matter was referred to a United

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States Magistrate Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On November 22, 2011, the magistrate judge filed findings and recommendations,

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which were served on plaintiff and which contained notice to plaintiff that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the file,

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the court declines to adopt the findings and recommendations. The magistrate judge found

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plaintiff to have attained three strikes and therefore recommended denial of his petition to

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proceed in forma pauperis. As discussed below, the court disagrees, and instead grants

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plaintiff’s request to proceed in forma pauperis. Plaintiff’s application makes the showing

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required by 28 U.S.C. § 1915(a)(1) and (2). Accordingly, the court directs the agency having

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custody of plaintiff to collect and forward the appropriate monthly payments for the filing fee as

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set forth in 28 U.S.C. § 1915(b)(1) and (2).

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28 U.S.C. § 1915(g) provides: “In no event shall a prisoner bring a civil action . . .

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under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or

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detained . . . brought an action . . . 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 . . . .” See Andrews v. King, 398

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F.3d 1113, 1121 (9th Cir. 2005) (“Section 1915(g) should be used to deny a prisoner's IFP status

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only when, after careful evaluation of the order dismissing an action, and other relevant

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information, the district court determines that the action was dismissed because it was frivolous,

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malicious or failed to state a claim.”). The magistrate judge recommends plaintiff’s application

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to proceed in forma pauperis be denied for having three previous strikes under 28 U.S.C. § 1915.

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(ECF 12.) Although the judge accurately takes judicial notice of the national pro se “three

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strike” database and finds plaintiff to have accrued two strikes prior to this action, his conclusion

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that Benyamini v. Kretch, et al., 09-cv-00170 GEB-DAD P, counts as a third strike is incorrect.

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In dismissing the complaint in Benyamini v. Kretch with leave to amend, the assigned magistrate
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judge in that case stated “[t]he allegations in plaintiff’s complaint are so vague and conclusory

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that the court is unable to determine whether the current action is frivolous or fails to state a

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claim for relief.” 2:09-cv-00170 GEB DAD P, Order, ECF-4, pp. 4-6. The present findings and

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recommendations reason that this sentence of the prior findings should be read as disjunctive and

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because then both sides of the disjunctive would qualify as a strike and plaintiff failed to amend,

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the court can apply a retroactive strike. (ECF 12 at 4 (citing Peralta v. Martel, Civ. No.

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2:08–00530 HWG, 2010 U.S. Dist. LEXIS 63891, 2010 WL 2629060, at *5 (E.D. Cal. Jun. 25,

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2010)).). The court need not address the extent to which unamended deficient claims can serve

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as the basis for a strike because in the present instance, it is clear from the context that the case

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relied upon for the third strike did not affirmatively find the complaint was either frivolous or

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failed to state a claim; rather, that case notes that the complaint was so vague and conclusory that

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the court was unable to perform its threshold gatekeeping function. The order then went on to

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discuss necessary elements of a complaint. Because plaintiff then failed to amend, the court

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dismissed for failure to prosecute. In context, this falls short of the kind of finding necessary to

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apply a strike. Cf. Thomas v. Felker, No. 2:09-cv-2486 GEB CKD P, 2012 U.S. Dist. LEXIS

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100695, at *2-3 (E.D. Cal. Jul. 19, 2012) (stating dismissal for failure to prosecute counted as a

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strike under § 1915(g) where IFP status was suspended due to lack of merit and plaintiff

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subsequently failed to prosecute by failing to pay filing fee); see also Oliver v. Smalls, No. ED

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CV 10-0054 TJH (JCG), 2010 U.S. Dist. LEXIS 139506, at *6-7 (C.D. Cal. Sept. 29, 2010)

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(discussing relevant case law); Peralta, 2010 U.S. Dist. LEXIS 63891, at *11-12 (dismissal for

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failure to prosecute was a strike where district court first dismissed complaint for failure to state

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a claim and plaintiff then did not file amended complaint as required).

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II. Benyamini v. Ogbeide (10-0101)
In light of the above, the court hereby sua sponte reconsiders its order in

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Benyamini v. Ogbeide, 10-cv-00101 KJM-GGH, adopting findings and recommendations and

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revoking plaintiff’s IFP status (ECF 42), as well as its subsequent order closing the case for

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plaintiff’s failure to pay the filing fee (ECF 52).

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A district court is vested with the “power to reconsider its own interlocutory order

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provided that the district court has not been divested of jurisdiction over the order.” City of

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L.A. v. Santa Monica BayKeeper, 254 F.3d 882, 888 (9th Cir. 2001). “Generally stated,

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reconsideration is appropriate where . . . it is necessary to correct clear error or prevent manifest

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injustice.” Cachil Dehe Band of Wintun Indians Cmty. v. California, 649 F. Supp. 2d 1063,

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1069 (E.D. Cal. 2009) (citing Sch. Dist. No. 1J Multnomah Cnty., Oregon v. AC&S Inc., 5 F.3d

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1255, 1263 (9th Cir. 1993)); see also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800,

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817 (1988) (“A court has the power to revisit prior decisions of its own or of a coordinate court

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in any circumstance, although as a rule courts should be loathe to do so in the absence of

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extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would

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work a manifest injustice.’” (quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983))).

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The relevant history of this case is as follows: On November 23, 2010, defendant

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Baker moved to revoke plaintiff’s IFP status (ECF 24) and on May 23, 2011, the magistrate

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judge filed findings and recommendations recommending the unserved defendant, Byrd, be

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dismissed and that Baker’s motion be granted, based on the same purported strikes as those

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referenced in Hommer (ECF 28), which the undersigned adopted on September 7, 2011 (ECF

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42). Plaintiff filed a motion to stay on October 12, 2011 (ECF 48), which the court denied as

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moot on April 11, 2012 (ECF 52). In its April 11, 2012 order, the court dismissed and closed

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this case after finding plaintiff had failed to pay the filing fee as ordered. (ECF 52.) Plaintiff

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filed an appeal with the Ninth Circuit on April 26, 2012 (ECF 55), which the Ninth Circuit

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dismissed on August 13, 2012, citing plaintiff’s failure to respond to its order (ECF 58).

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Plaintiff’s notice of appeal states he was appealing from the April 11, 2012 order “dismissing

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case for failure to oppose a motion to dismiss, and stay as moot.” (ECF 55.)

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The fact that this case has been closed and appealed has not divested the court of

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its jurisdiction to reconsider its interlocutory order and reopen the case. See Dressler v. Seeley

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Co. (In re Silberkraus), 336 F.3d 864, 869 (9th Cir. 2003) (“It is true that the filing of a notice of

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appeal generally divests the trial court of jurisdiction. The purpose of this judicially-created

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doctrine is to avoid the potential confusion and waste of resources from having the same issue

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before two separate courts at the same time. But we have been careful to note that the rule should

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not be employed to defeat its purposes nor to induce needless paper shuffling.” (internal citations

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and quotation marks omitted)); Redfield v. Ins. Co. of N. Am., 940 F.2d 542, 549 (9th Cir. 1991)

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(recognizing district court could consider Rule 60(b) motion after appeal to and remand from

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Circuit where Circuit reversed grant of original Rule 60(b) motion, finding grant was based on

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inaccurate reading of applicable statutes). The case of Standard Oil Co. of California v. United

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States is instructive here; in that case, the Court found the district court could consider a Rule

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60(b) motion after the case had been appealed and the mandate issued without leave of the

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appellate court. 429 U.S. 17, 17 (1976); see also Gould v. Mutual Life Ins. Co., 790 F.2d 769,

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773 (9th Cir. 1986) (“Gould need not have applied to this court or the Supreme Court for either a

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remand or a recall of mandate in order for the district court to have had jurisdiction to consider

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the motion and the independent action.”); Williams v. McKenzie, 576 F.2d 566, 570 (4th Cir.

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1978) (Rule 60(b)(2) motion can be considered by district court and case reopened after party

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has appealed and before appellate court has issued its mandate). In Standard Oil, the Court

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found the district court “is not flouting the mandate by acting on the motion” since the record

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and issues before the district court at the time were different from those before the appellate

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court. Standard Oil, 429 U.S. at 18; see also Lohman v. Gen. Am. Life Ins. Co., 478 F.2d 719,

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723 (8th Cir. 1973) (in cases “‘where the appeal is dismissed, without a decision on the issues[,

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s]ince there is no problem of deviating from the appellate court’s mandate and since the appeal

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no longer pends, the district court has the power to entertain a timely motion for relief under

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60(b)’” (quoting 7 Moore’s FEDERAL PRACTICE 424 (1972 ed.))). The Court further found “the
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interest in finality is not more impaired in this situation than in any Rule 60(b) proceeding.”

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Standard Oil, 429 U.S. at 19. Although Standard Oil involved misconduct by government

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counsel and a witness and a motion for relief from final judgment, while the present case

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involves the court’s own error and sua sponte reconsideration, its holding is just as instructive.

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First, although no party has filed a Rule 60 motion, the court may sua sponte reconsider a final

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order under Rule 60(b), Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 351-52

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(9th Cir. 1999), and correct its own mistakes. Colmar v. Jackson Band of Miwuk Indians, No.

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CIV S-09-0742 DAD, 2011 U.S. Dist. LEXIS 62832, at *4-5 (E.D. Cal. Jun. 15, 2011); San Luis

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& Delta-Mendota Water Auth. v. U.S. Dept. of Interior, 624 F. Supp. 2d 1197, 1208 (E.D. Cal.

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2009). Moreover, the law of the case does not deter the court’s present reversal as the Ninth

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Circuit did not decide, either explicitly or implicitly, whether plaintiff had accumulated three

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strikes. Liberty Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982); Santa Monica

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BayKeeper, 254 F.3d at 888 (“the doctrine is discretionary, not mandatory and is in no way a

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limit on [a court’s] power” (citation and quotation marks omitted; alteration in original)).

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Reconsideration here is necessary to correct a clear error and prevent manifest injustice; the

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interest in finality must give way in such circumstances. See Lexecon Inc. v. Milberg Weiss

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Bershad Hynes & Lerach, 523 U.S. 26, 43 (1998) (in case of compliance with removal statute,

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though untimely, “considerations of finality, efficiency and economy trump[] the error” (internal

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citation and quotation marks omitted)); TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 696

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(9th Cir. 2001) (“where there has been no merits decision, appropriate exercise of district court

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discretion under Rule 60(b) requires that the finality interest should give way fairly readily, to

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further the competing interest in reaching the merits of a dispute” (emphasis in original)); but see

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Espinosa v. United Student Aid Funds, 553 F.3d 1193, 1199 (9th Cir. 2008) (“[A] final judgment

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cannot be ignored or set aside just because it was the result of error. Errors committed during the

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course of litigation must be corrected by way of a timely appeal.”).1 Moreover, the court’s

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jurisdiction continued even after the notice of appeal was filed, as it was divested only “of

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jurisdiction over the matters being appealed,” Natural Res. Def. Council v. Southwest Marine,

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Inc., 242 F.3d 1163, 1166 (9th Cir. 2001); in this case, the matter appealed was the court’s final

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order dismissing the case for failure to pay the filing fee, not the court’s interlocutory order

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ordering plaintiff to pay a filing fee.

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However, “[a] judgment is property, so taking it requires due process of law.”

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Kingvision, 168 F.3d at 352. “Due process generally requires notice and an opportunity to be

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heard . . . .” Id. Accordingly, defendant Baker is hereby provided notice of the court’s

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inclination to reopen this case and continue plaintiff’s IFP status. Defendant Baker shall file a

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response, not to exceed five (5) pages, to this order within fourteen (14) days of its being filed;

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failure to respond shall be deemed non-opposition.

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III. Conclusion

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed November 22, 2011 in Benyamini v.

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Hommer, No. CIV S-11-2317 KJM-GGH, are adopted in part and denied in part;
2. Plaintiff’s October 12, 2011 motion to stay (ECF 8) in Benyamini v. Hommer,

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No. CIV S-11-2317 KJM-GGH, is denied as plaintiff has now stated he wishes to proceed with

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this action;

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3. Plaintiff’s October 18, 2011 in forma pauperis application (ECF 9) in

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Benyamini v. Hommer, No. CIV S-11-2317 KJM-GGH, is granted for the reasons set forth

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above; and

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The present case is easily distinguishable: here, plaintiff did not appear before the Ninth
Circuit as required and the Circuit did not consider the merits of his appeal.
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4. Any objections to the court’s intent to reopen Benyamini v. Ogbeide,

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No. CIV S-10-0101 KJM-GGH, shall be filed within fourteen (14) days of the filing of this order

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and shall not exceed five (5) pages.

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DATED: September 20, 2012.

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UNITED STATES DISTRICT JUDGE
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