Heilman v. Cherniss et al

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/20/11 RECOMMENDING that 17 MOTION to revoke plaintiffs in forma pauperis status and dismiss this action be denied. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, 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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THOMAS JOHN HEILMAN,
Plaintiff,

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vs.
C. CHERNISS, et al.,
Defendants.

FINDINGS AND RECOMMENDATIONS
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No. CIV S-11-0042 JAM EFB P

Plaintiff is a state prisoner proceeding without counsel and in forma pauperis in an action

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brought under 42 U.S.C. § 1983. Defendants Cherniss, Lesane and Forncrook (“defendants”)

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move to revoke plaintiff’s in forma pauperis status pursuant to 28 U.S.C. § 1915(g) and dismiss

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this action. Dckt. No. 17 (“Defs.’ Mot.”). For the following reasons, the court recommends that

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defendants’ motion be denied.

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Defendants request that plaintiff’s in forma pauperis status be revoked because plaintiff

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has had at least three prior actions dismissed as frivolous, malicious, or for failure to state a

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claim, and does not claim he is under imminent danger of immediate physical injury. Section

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1915(g) provides that:

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In no event shall a prisoner bring a civil action or appeal . . . under this section if
the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that was
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dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.
28 U.S.C. § 1915(g).
Pursuant to § 1915(g) a prisoner with three “strikes,” meaning prior cases or appeals,

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brought while the plaintiff was a prisoner, which were dismissed as frivolous, malicious, or for

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failure to state a claim, cannot proceed in forma pauperis. Andrews v. King, 398 F.3d 1113, 1116

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n.1 (9th Cir. 2005). Defendants bear the initial burden of producing documentary evidence that

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allows the court to conclude that the plaintiff has suffered three strikes. Id. at 1120 (because

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docket records will not always reflect the basis for the dismissal, defendants “must produce court

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records or other documentation that will allow the district court to determine that a prior case

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was dismissed because it was ‘frivolous, malicious or failed to state a claim.’”). If defendants

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meet this burden, the burden then shifts to the prisoner plaintiff, who must either explain why a

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prior dismissal should not count as a strike or show that he satisfies the “imminent danger of

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serious physical injury” exception to § 1915(g). See id. As discussed below, defendants fail to

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carry their burden of producing evidence allowing the court to conclude that plaintiff has

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suffered three strikes.

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Defendants point to three orders of dismissal that they contend count as strikes under 28

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U.S.C. § 1915(g).1 One of the three orders is an October 23, 2009 order dismissing an action

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filed by plaintiff pursuant to plaintiff’s notice of voluntary dismissal. Defs.’ Mot., Mem. of P. &

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A. in Supp. Thereof at 4, Ex. D (Heilman v. Fry, Case No. 2:08-cv-2478-JLQ (E.D. Cal.)). As

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noted, a plaintiff suffers a strike when an “action or appeal,” brought by that plaintiff while

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“incarcerated or detained,” is dismissed as frivolous, malicious, or for failure to state a claim. 28

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The court hereby takes judicial notice of the court records submitted with defendants’
motion. See Fed. R. Evid. 201(b) (allowing a court to take judicial notice of a fact “not subject
to reasonable dispute in that it is . . . capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned”); see also MGIC Indem. Co. v.
Weisman, 803 F.2d 500, 504 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th
Cir. 1980).
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U.S.C. § 1915(g). Nothing on the face of the notice of voluntary dismissal or the order of

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dismissal indicates that the action was frivolous, malicious, or failed to stated a claim and

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defendants fail to otherwise demonstrate that the October 23, 2009 order qualifies as a strike for

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purposes of § 1915(g). Because defendants have failed to demonstrate that the one of the three

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orders they rely on counts as a strike, they have not demonstrated that plaintiff has suffered three

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strikes pursuant to § 1915(g). The court need not decide whether the remaining two orders

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produced by defendants qualify as strikes. See Defs.’ Mot., Mem. of P. & A. in Supp. Thereof at

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4, Exs. A-C.

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Accordingly, IT IS HEREBY RECOMMENDED that defendants’ September 29, 2011
motion to revoke plaintiff’s in forma pauperis status and dismiss this action be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: December 20, 2011.

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