Brewer v. Grossbaum et al

Filing 107

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/17/16 Recommending that Defendant's 82 MOTION to DISMISS and revoke ifp be granted; and This Action be dismissed without prejudice, unless Plaintiff pays the full fi ling fee for this Action. ($400.00), by the deadline for filing objections to these Findings and Recommendations. These Findings and Recommendations are submitted to Judge William B. Shubb. Objections to these F&Rs due within fourteen days.(Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEVIN D. BREWER, aka MICHAEL
GREEN,
Plaintiff,

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FINDINGS AND RECOMMENDATIONS
v.

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No. 2:12-cv-1555 WBS DB P

YOSSI GROSSBAUM, et al.,
Defendant.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C.

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§1983. In 2015, this court found that plaintiff had accrued three strikes under 28 U.S.C. §1915(g)

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and granted defendants’ motion to revoke plaintiff’s in forma pauperis (“IFP”) status. Plaintiff

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appealed that ruling. On November 4, 2016, the Ninth Circuit Court of Appeals vacated this

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court’s decision and remanded. The Ninth Circuit specifically asked the district court to consider

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whether one prior dismissal, which this court found to be a strike, should count as a strike under

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the standards recently established in Washington v. Los Angeles County Sheriff’s Department,

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833 F.3d 1048 (9th Cir. 2016). For the reasons set forth below, the undersigned finds the prior

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dismissal at issue counts as a strike under Washington and recommends that the district court

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grant defendants’ motion to revoke plaintiff’s IFP status.

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BACKGROUND

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In November 2014, the previously-assigned magistrate judge found that plaintiff had three

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prior strikes within the meaning of 28 U.S.C. § 1915(g) and recommended that defendants’

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motion to revoke plaintiff’s IFP status be granted. (ECF No. 94.) On January 21, 2015, the

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district judge adopted these findings and recommendations in full and dismissed plaintiff’s action

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without prejudice. (ECF No. 97.) Plaintiff appealed. (ECF No. 100.)
On November 4, 2016, the Ninth Circuit Court of Appeals vacated the district judge’s

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decision and remanded. (ECF No. 105.) The Court of Appeals held that it was unclear whether

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the dismissal of one of plaintiff’s prior actions should be counted as a strike. Specifically, the

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Court of Appeals stated:

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one of the dismissals that the district court counted as a strike was
dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Because it is unclear whether that prior action included a claim that
both sounded in habeas and sought injunctive relief, we vacate and
remand for further proceedings to determine whether the dismissal
of that action as Heck-barred constitutes a strike. See Washington
v. L.A. Cty. Sheriff’s Dep’t, No. 13-56647, 2016 U.S. App. LEXIS
14854 at *17-20 (9th Cir. Aug. 12, 2016) (holding that a dismissal
of an action that includes a claim that both sounds in habeas and
seeks injunctive relief does not constitute a strike).

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(Id. at 2.)

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ANALYSIS

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This court understands the charge from the Court of Appeals to be an examination of the

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prior Heck-barred action to determine if it included a claim that both “sounded in habeas and

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sought injunctive relief” in order to decide whether the dismissal of that action as Heck-barred

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constitutes a strike under Washington.

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I.

Legal Standards

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A. In Forma Pauperis Statute

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Title 28 U.S.C. § 1915(g) is part of the Prison Litigation Reform Act (“PLRA”). The

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PLRA was intended to eliminate frivolous lawsuits, and its main purpose was to address the

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overwhelming number of prisoner lawsuits. Cano v. Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014).

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Section 1915(g) provides:
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In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding 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 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.

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The plain language of the statute makes clear that a prisoner is precluded from bringing a civil

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action or an appeal in forma pauperis if the prisoner has previously brought three frivolous

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actions or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d

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1176, 1178 (9th Cir. 1999). Section 1915(g) should be used to deny a prisoner's IFP status “only

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when, after careful evaluation of the order dismissing [each] action, and other relevant

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information, the district court determines that [each] action was dismissed because it was

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frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.

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2005); see also Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (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.”).
This “three strikes rule” was part of “a variety of reforms designed to filter out the bad

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claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 S.

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Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has “three

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strikes” under § 1915(g), the prisoner is barred from proceeding IFP unless he meets the

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exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d

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1047, 1052 (9th Cir. 2007). The Ninth Circuit has held that the complaint of a “three-strikes”

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prisoner must plausibly allege that the prisoner was faced with imminent danger of serious

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physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189

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(9th Cir. 2015); Andrews v. Cervantes, 493 F.3d at 1055.
Defendants have the burden to “produce documentary evidence that allows the district

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court to conclude that the plaintiff has filed at least three prior actions that were dismissed

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because they were ‘frivolous, malicious or fail[ed] to state a claim.’” Andrews v. King, 398 F.3d

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at 1120 (quoting § 1915(g)). Once defendants meet their initial burden, it is plaintiff's burden to

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explain why a prior dismissal should not count as a strike. Id. If the plaintiff fails to meet that

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burden, plaintiff's IFP status should be revoked under 28 U.S.C. § 1915(g). Id.

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B. Dismissals under Heck v. Humphrey

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The Supreme Court has held that habeas corpus is the exclusive remedy for a state

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prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier

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release, even though such a claim may come within the “literal terms of §1983.” Preiser v.

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Rodriguez, 411 U.S. 475, 488-90 (1973). In Heck v. Humphrey, the Court applied the reasoning

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of Preiser to a § 1983 claim for damages. Thus, a plaintiff cannot maintain a § 1983 action to

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recover damages for “harm caused by actions whose unlawfulness would render [his] conviction

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or sentence invalid” unless his conviction and sentence have previously been “reversed on direct

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appeal, expunged by executive order, declared invalid by a state tribunal . . . , or called into

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question by a federal court’s issuance of a writ of habeas corpus.” Heck v. Humphrey, 512 U.S.

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477, 486–87 (1994). Heck’s bar has been applied to § 1983 claims which implicate the validity

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of a prison disciplinary sanction, as well as of an underlying conviction. See Edwards v. Balisok,

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520 U.S. 641, 646-48 (1977) (claim for damages and declaratory relief challenging validity of

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procedures used to deprive prisoner of good time credits is not cognizable under § 1983).

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C. When Does a Heck Dismissal Count as a Strike?

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In 2015, when this court ruled on defendants’ motion to revoke plaintiff’s IFP status, the

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Ninth Circuit Court of Appeals had not addressed the question of whether a dismissal under Heck

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v. Humphrey qualified as a strike under 28 U.S.C. § 1915(g). See Andrews v. Cervantes, 493

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F.3d at 1052 n.2. In August 2016, the Ninth Circuit considered the use of Heck dismissals as

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strikes in Washington v. Los Angeles County Sheriff’s Department, 833 F.3d 1048 (9th Cir.

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2016). The court in Washington held that a Heck dismissal does not categorically count as a

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dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), and thus

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does not necessarily count as a strike under § 1915(g). 833 F.3d at 1055. The Washington court

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held that a Heck dismissal constitutes a Rule 12(b)(6) dismissal “when the pleadings present an

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‘obvious bar to securing relief’ under Heck.” Id. at 1056 (quoting ASARCO, LLC v. Union Pac.

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R.R. Co., 765 F.3d 999, 1004 (9th Cir. 2014)). The court clarified that holding by explaining that
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this standard would apply to count as a strike only where the entire action was dismissed for a

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qualifying reason under the PLRA. Id. at 1055, 1057 (citing Andrews v. Cervantes, 493 F.3d at

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1054).

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In Washington, the court considered whether one of plaintiff Washington’s prior

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proceedings constituted a strike under § 1915(g). In that prior § 1983 proceeding, Washington

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sought a “recall” of his allegedly unlawful sentence enhancement, essentially an injunction, and

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damages for his additional year in prison based on the enhancement. Id. at 1057. The

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Washington court found that the request for injunctive relief sounded in habeas. Id. A habeas

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action is not a “civil action” within the purview of the PLRA and its dismissal does not trigger a

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strike. Id. (citing Andrews v. King, 398 F.3d at 1122-23). Therefore, the dismissal of

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Washington’s prior suit did not amount to a strike because “the entire action was not dismissed

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for one of the qualifying reasons enumerated by” § 1915(g). Id.

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II.

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Discussion
In the present case, the prior dismissal barred by Heck is Brewer v. Board of Prison

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Terms, No. 3:05-cv-176 SI (N.D. Cal. Apr. 15, 2005) (ECF No. 6). (See ECF No. 94 at 4.) The

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undersigned has reviewed plaintiff’s complaint in Brewer v. Board of Prison Terms.1 Therein,

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plaintiff challenged a Board of Prison Terms’ parole revocation proceeding. Brewer v. Board of

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Prison Terms, No. 3:05-cv-176 SI (N.D. Cal. Jan. 1, 2005) (ECF No. 1). Plaintiff alleged that the

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board member who conducted his hearing did not permit him “the right to confront my accusers,”

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used hearsay evidence against him, violated his “right to a fair hearing under the state constitution

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under equal protection of the law,” committed an “obstruction of justice,” violated his due

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process rights, and the decision constituted “false imprisonment under the color of state law” by

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“giving inmate a year in prison.” Id. at 3. The relief sought was “General/Punitive Damages of

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Thirteen Million” and “To present my case Before a Jury.” Id.
It appears that plaintiff’s complaint in Brewer v. Board of Prison Terms falls squarely

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within the Heck bar. Plaintiff’s claims sounded in habeas and the relief he sought was damages.
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A court may take judicial notice of “matters of public record” pursuant to Federal Rule of
Evidence 201. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986).
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See Washington, 833 F.3d at 1055 (under Heck, “a civil damages claim that undermines a valid,

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underlying conviction or sentence is ‘not cognizable under § 1983.’”) Unlike the prior

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proceeding considered by the court in Washington, in his Northern District case plaintiff did not

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seek any injunctive relief that might be available in a habeas proceeding. Plaintiff sought solely

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damages. Under the analysis set out by the Ninth Circuit Court of Appeals in Washington,

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plaintiff’s “pleadings present[ed] an ‘obvious bar to securing relief’ under Heck” and the district

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court in Brewer v. Board of Prison Terms dismissed the entire action because plaintiff’s claims

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were barred by Heck and, in the alternative, by the doctrine of absolute quasi-judicial immunity.

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Brewer, No. 3:05-cv-176 SI (N.D. Cal. Apr. 15, 2005) (ECF No. 6 ). For these reasons, the

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undersigned finds the dismissal of plaintiff’s complaint in Brewer v. Board of Prison Terms as

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Heck-barred qualifies as a strike under 28 U.S.C. § 1915(g).

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This court previously found that the dismissals of plaintiff’s complaints in Brewer v. Alta

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Bates Summit Medical Center, No. C 08-3149 SI (pr) (N.D. Cal.) and Brewer v. Alta Bates

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Summit Medical Center, No. C 11-2703 TEH (PR) (N.D. Cal.) also counted as strikes under 28

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U.S.C. § 1915(g). (ECF No. 94 at 4-5; No. 97.) The Court of Appeals did not disturb these

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findings.

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Because plaintiff accrued three strikes under 28 U.S.C. § 1915(g) prior to filing this

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action, the undersigned will recommend that defendants’ motion to revoke plaintiff’s IFP status

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be granted.

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For the foregoing reasons, IT IS HEREBY RECOMMENDED that:

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1. Defendants’ motion to revoke plaintiff’s IFP status (ECF No. 82) be granted; and

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2. This action be dismissed without prejudice, unless plaintiff pays the full filing fee for

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this action ($400.00) by the deadline for filing objections to these findings and recommendations.

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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.” Any response to the
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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: November 17, 2016

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DLB:9
DLB1/prisoner-civil rights/Brew1555.revoke ifp

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