Jones v. Kuppinger et al

Filing 34

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 05/16/14 ORDERING defendants' request for judicial notice of documents 19 in support of their motion to revoke IFP is granted. Unitl such time as plaintiff� 39;s in forma pauperis status has been resolved by the district judge to be assigned to this case, briefing of plaintiff's 05/05/14 motion for leave to file a second amended complaint 29 is suspended. Defendants are relieved of the obligation to oppose the motion at this time, and a briefing schedule will be set following final determination of plaintiff's filing status. The clerk is directed to randomly assign a district judge to this case. U.S. District Judge William B. Shubb ra ndomly assigned to this action. Also, RECOMMENDING that defendants' motion to revoke plaintiff's in forma pauperis status on the ground that plaintiff is barred from proceeding in forma pauperis by the 3 strikes provision of 28 USC 1915(g) be granted. Plaintiff be required to pay the $350.00 filing fee in full within 30 days of the adoption of these findings and recommendations, failing which the case be dismissed. Defendant's motions to strike certain of plaintiff's filings 22 , 27 , 28 be denied as moot in light of plaintiff's notice of withdrawal of his opposition to defendants' motion 31 . Motions 18 , 22 , 27 referred to Judge William B. Shubb. Objections due within 21 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

HENRY A. JONES,

12

Plaintiff,

13
14

No. 2:13-cv-0451 AC P

v.

ORDER and

P. KUPPINGER, et al.,

15

FINDINGS AND RECOMMENDATIONS

Defendants.

16
17

Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S. § 1983.

18

Pending before the court are: (1) defendant Kuppinger’s January 27, 2014 motion to revoke

19

plaintiff’s in forma pauperis status and stay proceedings, ECF No. 18, which defendant Moore1

20

joined on March 17, 2014, ECF No. 24; (2) defendant’s motion to strike Exhibit B in opposition

21

to motion to revoke IFP status, ECF No. 22; (3) defendant’s motion to strike plaintiff’s

22

“unauthorized” surreply, ECF No. 27; (4) defendants’ motion to strike defendants’ memorandum

23

of points and authorities in support, or in the alternative, reply, ECF No. 28; and (5) plaintiff’s

24

motion for leave to file a second amended complaint and proposed second amended complaint

25

(ECF No. 29).

26
27
28

1

A waiver of service of summons on behalf of defendant Moore was dated as signed on January
29, 2014 and was filed in this court on February 3, 2014. ECF No. 20.
1

1
2
3

I.

Defendants’ Motion to Revoke Plaintiff’s In Forma Pauperis Status
Defendants move to revoke plaintiff’s in forma pauperis status, contending that plaintiff is

barred by the three strikes provision of 28 U.S.C. § 1915(g).

4

A. Standards Governing Revocation of IFP Status

5

28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

6

and prosecution of any suit without prepayment of fees by a person who submits an affidavit

7

indicating that the person is unable to pay such fees. However,

8
9
10
11
12
13

[i]n 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.
28 U.S.C. § 1915(g).

14

In forma pauperis status may be acquired and lost during the course of litigation.

15

Stehouwer v. Hennessey, 841 F.Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by

16

Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute makes clear

17

that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the

18

prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling

19

three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir. 1999). 28 U.S.C. § 1915(g) should

20

be used to deny a prisoner’s in forma pauperis status only upon a determination that each action

21

reviewed (as a potential strike) is carefully evaluated to determine that it was dismissed as

22

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

23

Cir. 2005). Defendant has the burden to “produce documentary evidence that allows the district

24

court to conclude that the plaintiff has filed at least three prior actions . . . dismissed because they

25

were ‘frivolous, malicious or fail[ed] to state a claim.’” Id., at 1120 (quoting § 1915(g)). Once

26

defendants meet their initial burden, it is plaintiff’s burden to explain why a prior dismissal

27

should not count as a strike. Id. If the plaintiff fails to meet that burden, plaintiff’s IFP status

28

should be revoked under § 1915(g). Id.
2

1

In Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011), the Ninth Circuit found

2

that “a dismissal must be final before it counts as a ‘strike’ for § 1915(g) purposes.” Thus, “a

3

district court’s dismissal of a case does not count as a ‘strike’ under § 1915(g) until the litigant

4

has exhausted or waived his opportunity to appeal. This means a dismissal ripens into a ‘strike’

5

for § 1915(g) purposes on the date of the Supreme Court’s denial or dismissal of a petition for

6

writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ

7

of certiorari expired, if he did not.” Id. at 1100 (internal quotation omitted). “If a prisoner does

8

not appeal a dismissal, the dismissal counts as a ‘strike’ from the date when his time to file a

9

direct appeal expired.” Id., n.6.

10

B. Plaintiff’s Opposition and Withdrawal of Opposition

11

Plaintiff timely filed an opposition to the motion to revoke IFP status. ECF No. 21.

12

Following defendants’ reply, plaintiff filed a memorandum of points and authorities in further

13

support of his opposition . ECF No. 25. Defendants moved to strike portions of plaintiff’s

14

opposition, and his “unauthorized surreply.” ECF Nos. 22, 27.

15

On May 5, 2014, plaintiff filed a notice of withdrawal of his opposition to the motion to

16

revoke IFP status. ECF No. 31. Plaintiff indicates his non-opposition to an order that he pay the

17

filing fee, and emphasizes his interest in “preserving these proceedings.” Id. Because plaintiff

18

has withdrawn his opposition to the motion, defendants’ motions to strike documents related to

19

the opposition are now moot.

20
21

Notwithstanding plaintiff’s withdrawal of opposition, the court must determine whether or
not plaintiff is in fact subject to the three-strikes bar of § 1915(g).

22

C. Plaintiff’s Previous Dismissals

23

Defendants contend that the following three cases constitute strikes. Defendants’ request

24

for judicial notice of these proceedings is granted. 2 The court notes that in his abandoned

25

opposition, plaintiff contended that the PACER report submitted by defendant to establish

26

plaintiff’s litigation history included cases that were not brought by plaintiff. Plaintiff has never

27

2

28

A court may take judicial notice of court records. See Barron v. Reich, 13 F.3d 1370, 1377 (9th
Cir. 1994); MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v.
Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
3

1

disputed, however, that he was he plaintiff in the following three cases.

2

1. Jones v. Waiser, No. [6:]04-3148-cv-S-RED-P (W.D. Mo.)

3

On May 7, 2004, the Western District of Missouri screened out plaintiff’s complaint,

4

brought as a federal prisoner pursuant to Bivens v. Six Unknown Named Agents of the Federal

5

Bureau of Narcotics,403 U.S. 388 (1971).3 The court dismissed plaintiff’s claims against the

6

defendant in his individual capacity with prejudice “for failure to state a claim pursuant to 28

7

U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii). . . .” ECF No. 19, Exhibit B-2 at 13; id.,

8

Ex. B-3 at 15. The court also dismissed any official capacity claim against the defendant

9

“without prejudice, for failure to exhaust administrative remedies under the FTCA.”4 Id. Within

10

the order, the U.S. District Judge Richard E. Dorr stated plainly: “[p]laintiff is cautioned that this

11

dismissal will count against him for purposes of the three-dismissal rule set forth in 28 U.S.C. §

12

1915(g)(1996).” Ex. B-2 at 12. Plaintiff’s subsequent motions for reconsideration and to correct

13

legal status were denied. Ex. B-1at 7.

14

2. Jones v. Macher, No. 1:05-cv-0257-OWW-SMS (E.D. Cal.)

15

In this action, brought pursuant to § 1983, plaintiff’s first amended complaint was

16

dismissed with prejudice for failure to state a claim. ECF No. 19, Ex. C-1 at 59-60; id., Ex. C-2;

17

Ex. C-3 at 33 (“The action IS DISMISSED with prejudice for failure to state a claim upon which

18

relief may be granted.”) The case was closed on May 26, 2005. Ex. C-1 at 19.

19

3. Jones v. Milligan, No. 1:05-cv-00307-SMS (E.D. Cal.)

20

Defendants produce records showing that judgment in this Bivens action brought by

21

plaintiff issued on October 17, 2008 for failure to state a claim. ECF No. 19, Exs. D-2, D-3. The

22

court, upon screening plaintiff’s first amended complaint, in its order of dismissal concludes:

23

“The Court finds that Plaintiff has failed to state a claim against any of the named defendants.

24

Accordingly, it is HEREBY ORDERED that this entire action be dismissed with prejudice.” Ex.

25

D-2 at 47. The docket reveals that the subsequent appeal to the Ninth Circuit was dismissed

26
27
28

3

Bivens provides a cause of action for federal prisoners analogous to 42 U.S.C. ' 1983. See
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
4
Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq.
4

1

voluntarily. Ex. D-1 at 39.

2

D.

3

Discussion
1. Strike One

4

Jones v. Waiser, No. [6:]04-3148-cv-S-RED-P (W.D. Mo.), indisputably constitutes a

5

strike. It is the law of the Circuit that disposition of an in forma pauperis complaint on grounds

6

that the complaint fails to state a claim under 28 U.S.C. § 1915A,5 28 U.S.C. § 1915(e)(2)(B)6 or

7

42 U.S.C. § 1997e(c)7 constitutes both a dismissal and a strike within the meaning of § 1915(g).

8

O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008); see also Lopez v. Smith, 203 F.3d 1122,

9

1129 (9th Cir.2000) (three dismissals under § 1915(e)(2) result in disqualification from IFP status

10

pursuant to § 1915(g)). Jones v. Waiser was dismissed for failure to state a claim with citation to

11

both 28 U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(ii). Moreover, the court expressly

12

ruled that its dismissal constituted a strike. Accordingly, Case No. 04-3148-cv-S-RED-P (W.D.

13

Mo.) must be counted as a strike.

14

////

15
16
17
18
19
20
21
22
23
24
25
26
27
28

5

28 U.S.C. § 1915A states, in pertinent part:
“(a) Screening.—The court shall review, before docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental entity.
(b) Grounds for Dismissal.—On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint—
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.”
6
Under 28 U.S.C. § 1915(e)(2)(b),“Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any time if the court determines that--…
(B) the action or appeal--(i) is frivolous or malicious; (ii) fails to state a claim on which relief
may be granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.”
7
In full, 42 U.S.C. § 1997e(c) “Dismissal” states:
“(1) The court shall on its own motion or on the motion of a party dismiss any action brought
with respect to prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility if the court is satisfied that the
action is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks
monetary relief from a defendant who is immune from such relief.
(2) In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a defendant who is immune from such relief,
the court may dismiss the underlying claim without first requiring the exhaustion of
administrative remedies.”
5

1

2. Strike Two

2

Jones v. Macher, No. 1:05-cv-0257-OWW-SMS (E.D. Cal.), was dismissed with prejudice

3

for failure to state a claim. The dismissal followed amendment which failed to cure the

4

deficiencies of the claims. The district court evaluated the factual allegations and found them

5

legally inadequate to state any claim for relief. ECF No. 19, Ex. C-2, C-3. Pursuant to the court’s

6

review of the order dismissing this case, the undersigned finds that Case No. 1:05-cv-0257-

7

OWW-SMS (E.D. Cal.) qualifies as a strike. Andrews, 398 F.3d at 1121 (a prior dismissal

8

qualifies as a strikes when, upon review of the order of dismissal and other relevant information,

9

the court determines that an action has been dismissed because it was found to be frivolous,

10

malicious or to have failed to state a claim).

11

3. Strike Three

12

Jones v. Milligan, No. 1:05-cv-00307-SMS (E.D. Cal.), was also dismissed with prejudice

13

on the express grounds of failure to state a claim. The court evaluated the allegations of the

14

complaint and found that they failed to state a legally viable claim for relief against any

15

defendant. ECF No. 19, Ex. D-2. Having reviewed the order of dismissal, the undersigned finds

16

that this case also qualifies as a strike.

17

In his abandoned opposition, plaintiff represented that he had at some point paid the filing

18

fee in this case.8 Plaintiff’s exhibits appear to demonstrate that the filing fee was paid in by

19

installments (per the prisoner in forma pauperis process) prior to the dismissal of the action.

20

However, whether and at what point plaintiff paid the filing fee has no bearing on whether the

21

dismissal was for reasons that qualify it as a strike. The plain language of the dismissal order

22

demonstrates that the dismissal of Case No. 1:05-cv-00307-SMS (E.D. Cal.) constitutes a strike.

23

4. Imminent Danger Exception

24

Under the Prison Litigation Reform Act (as amended in 1996) (PLRA), prisoners who

25

have had three complaints dismissed as frivolous or malicious, or for failure to state a claim, are

26

barred from filing additional in forma pauperis complaints unless they are “under imminent

27
28

8

The unauthenticated documents plaintiff submits to support this claim are the subject of
defendants motion to strike, which is moot for the reasons explained above.
6

1

danger of serious physical injury.” 28 U.S.C. § 1915(g); Lopez v. Smith, 203 F.3d at 1129. To

2

meet the exception, plaintiff must have alleged facts that demonstrate that he was “under

3

imminent danger” at the time the complaint was filed. Andrews v. Cervantes, 493 F.3d 1047,

4

1052-53 (9th Cir.2007).

5

Plaintiff alleged in his original complaint that he was a participant in the Enhanced

6

Outpatient Program (EOP) at California State Prison-Sacramento (CSP-Sac) and that on or about

7

May 12, 2011, he was placed in administrative segregation pending an investigation. Complaint

8

at 6. The court has previously summarized the allegations of the initial complaint as follows:

9

The cell [in which he was placed] was soiled with feces and
plaintiff could not breathe. When he asked the staff if he could
move, “all defendant[s] did noth[ing].” Plaintiff boarded up his
windows and began ripping up sheets. An hour later, he called an
unidentified woman to his window and told her he was suicidal.
The woman called to staff that plaintiff was suicidal, but defendant
Kuppinger told her plaintiff was “just playing.” Everyone left and
plaintiff began tying a noose and cutting himself. Thirty minutes
later defendant Moore knocked on plaintiff’s window, plaintiff
removed the paper, and defendant Moore pushed the alarm.
Kuppinger and other unidentified officers responded and placed
plaintiff in handcuffs and leg restraints. Kuppinger pushed plaintiff
around, then knocked his legs out from under him. Kuppinger and
two other guards beat plaintiff, including punching him in the face
and twisting his feet. Defendant Moore looked on during the assault
and failed to respond to plaintiff’s cries of pain. ECF No. 1 at 6-7.

10
11
12
13
14
15
16
17
18

Order, filed on June 21, 2013, ECF No. 6 at 3-4.

19

The instant action was filed on March 6, 2013, nearly two years after the events giving

20

rise to plaintiff’s claims. The allegations of the complaint involved past events only. Plaintiff did

21

not allege that he remained housed under the conditions complained of, or remained subject to or

22

threatened with ongoing abuse by defendants. In order for plaintiff to qualify for the exception,

23

the alleged danger must be imminent or ongoing at the time of filing. Andrews v. Cervantes, 493

24

F.3d at 1056. Because plaintiff did not so allege, the imminent danger exception does not apply.

25

The motion to revoke plaintiff’s IFP status therefore should be granted.

26
27
28

II.

Status Of Motion To Amend Complaint
Defendants have proposed a stay of proceedings pending final resolution of plaintiff’s in

forma pauperis status. While a formal stay is unnecessary, the court finds good cause to defer
7

1

briefing and disposition of plaintiff’s pending motion for leave to amend to file a second amended

2

complaint.

3

Accordingly, IT IS ORDERED that:

4

1. Defendants’ request for judicial notice of documents (ECF No. 19) in support of their

5

motion to revoke IFP is granted;

6

2. Until such time as plaintiff’s in forma pauperis status has been resolved by the district

7

judge to be assigned to this case, briefing of plaintiff’s May 5, 2014 motion for leave

8

to file a second amended complaint (ECF Nos. 29) is suspended. Defendants are

9

relieved of the obligation to oppose the motion at this time, and a briefing schedule

10

will be set following final determination of plaintiff’s filing status.

11

3. The Clerk is directed to randomly assign a district judge to this case.

12

IT IS RECOMMENDED that:

13

1. Defendants’ motion to revoke plaintiff’s in pauperis status on the ground that plaintiff

14

is barred from proceeding in forma pauperis by the three-strikes provision of 28

15

U.S.C. § 1915(g) be granted;

16

2. Plaintiff be required to pay the $350.00 filing fee in full within thirty days of the

17

adoption of these findings and recommendations, failing which the case be dismissed.

18

3. Defendant’s motions to strike certain of plaintiff’s filings (ECF Nos. 22, 27, 28) be

19

denied as moot in light of plaintiff’s notice of withdrawal of his opposition to

20

defendants’ motion (ECF No. 31).

21

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

22

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

23

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

24

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

25

“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

26

objections shall be filed and served within fourteen days after service of the objections. The

27

////

28

////
8

1

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

2

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

3

DATED: May 16, 2014

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9