Bontemps v. Harper
Filing
25
ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/5/2016 ORDERING the Clerk to randomly assign a US District Judge to this case. IT IS RECOMMENDED that defendant's 19 motion for an order revoking plaint iff's IFP Status be granted in part; the court's 3/25/2014 order granting IFP status be vacated and plaintiff's IFP status be revoked; and plaintiff be required to furnish the $400.00 filing fee to proceed with this action and be admonished that failure to pay the filing fee within 30 days of any order adopting this recommendation will result in dismissal of this action. Assigned and referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
GREGORY C. BONTEMPS,
12
Plaintiff,
13
14
No. 2:13-cv-0506-EFB P (TEMP)
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
HARPER,
15
Defendant.
16
17
I.
Introduction
Plaintiff, a state prisoner proceeding pro se and in forma pauperis (“IFP”), has filed this
18
19
civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on a First Amended
20
Complaint, which was found to state an Eighth Amendment medical indifference claim against
21
defendant Harper for allegedly confiscating a pump and socks for an air cast while plaintiff was
22
housed in administrative segregation. ECF Nos. 12, 14.
Before the court is defendant’s June 2, 2015, motion for an order (i) revoking plaintiff’s
23
24
IFP status and (ii) requiring security pursuant to Local Rule 151. ECF No. 19. Plaintiff opposes
25
the motion on the ground that he is not a “three-striker.” This matter is fully briefed and ready for
26
disposition.
27
/////
28
/////
1
1
II.
2
Legal Standards
The Prison Litigation Reform Act (“PLRA”) was intended to eliminate frivolous lawsuits,
3
and its main purpose was to address the overwhelming number of prisoner lawsuits. Cano v.
4
Taylor, 739 F.3d 1214, 1219 (9th Cir. 2014). 28 U.S.C. § 1915(g), a part of the PLRA, reads:
5
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.
6
7
8
9
10
28 U.S.C. § 1915(g). As the Supreme Court has stated, this “three strikes rule” was part of “a
11
variety of reforms designed to filter out the bad claims filed by prisoners and facilitate
12
consideration of the good.” Coleman v. Tollefson, 135 S. Ct. 1759, 1762 (2015) (quoting Jones v.
13
Block, 549 U.S. 199, 204 (2007)).
14
If a prisoner has “three strikes” under § 1915(g), the prisoner will be barred from
15
proceeding IFP unless he meets the exception for imminent danger of serious physical injury. See
16
Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007).
17
The Ninth Circuit has held that the complaint of a “three-strikes” prisoner must plausibly
18
allege that the prisoner was faced with imminent danger of serious physical injury at the time his
19
complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 (9th Cir. 2014); Andrews,
20
493 F.3d at 1055.
21
III.
22
23
Discussion
Plaintiff initiated this action on March 13, 2013. Prior to that date, the following cases
filed by plaintiff were dismissed for the reasons set forth here1:
24
1. Bontemps v. Lee, 2:12-cv-0771-KJN (E.D. Cal.), dismissed without leave to amend on
25
26
January 31, 2013, for failure to state a claim (ECF No. 20);
/////
27
28
1
The court takes judicial notice of these cases pursuant to Federal Rule of Evidence 201.
2
1
2. Bontemps v. Kramer (“Kramer I”): 2:06-cv-2483-RRB-GGH (E.D. Cal.), dismissed
2
without prejudice on December 22, 2008, for failure to file an amended pleading after
3
dismissal upon screening (ECF Nos. 9, 12, 14);
4
3. Bontemps v. Kramer (“Kramer II”): 2:06-cv-2580-JAM-GGH (E.D. Cal.), dismissed
5
without prejudice on August 30, 2007, for failure to file an amended complaint after
6
dismissal upon screening (ECF Nos. 9, 11, 12); and
7
4. Bontemps v. Gray (“Gray”): 2:07-cv-710-MCE-CMK (E.D. Cal.), dismissed without
8
prejudice on July 5, 2007, for failure to file an amended complaint upon screening
9
(ECF Nos. 3, 6, 7).
10
Of these four cases, only one clearly counts as a strike (Bontemps v. Lee, 2:12-cv-0771-
11
KJN). Of the remaining three cases, the dismissals were for failure to file an amended complaint
12
and failure to comply with a court order. In each of these latter three cases, the underlying
13
dismissal of the complaint was for failure to state a claim.
14
The Ninth Circuit has not addressed in a published opinion whether dismissals of this kind
15
count as a strike under § 1915(g)2, and district courts faced with this question have reached
16
different results. Compare Bontemps v. Callison, 2:13-cv-1360-KJM-AC (declining to find that
17
dismissals for failure to file an amended complaint and failure to prosecute were strikes because
18
the underlying complaints had been dismissed for failure to state a claim with leave to amend);
19
and Keeton v. Cox, 2:06-cv-1094-GEB-CKD, 2009 WL 650413, at *6 (E.D. Cal. Mar. 12, 2009),
20
recommendation adopted by 2010 WL 1173073 (E.D. Cal. Mar. 23, 2010) (stating that a
21
dismissal for failure to amend a complaint dismissed with leave to amend is not a strike because
22
the underlying order recognized pleading defects were remediable), with Hudson v. Bigney, 2:11-
23
cv-3052 LKK AC, 2013 WL 6150789 (E.D. Cal. Nov. 22, 2013) (“A dismissal for failure to
24
prosecute an action constitutes a strike when it is based upon the plaintiff’s failure to file an
25
/////
26
27
28
2
In an unpublished decision, Baskett v. Quinn, 225 F. App’x 639 (9th Cir. Mar. 21, 2007),
the Ninth Circuit upheld a district court order finding that a prior dismissal for failure to file an
amended complaint constituted a strike.
3
1
amended complaint after the original complaint is dismissed for failure to state a claim.”),
2
(adopted in full by 2014 WL 309484 (E.D. Cal. Jan. 28, 2014)).
3
This court recently considered this same issue concerning these same cases with this same
4
plaintiff in Bontemps v. Sotak, 2:09-cv-2115-MCE-EFB, 2015 WL 812360 (E.D. Cal. Feb. 25,
5
2015).3 In an effort to conserve scare judicial resources, the court incorporates by reference its
6
analysis in that case. In brief, the undersigned held that the Ninth Circuit’s decision in Knapp v.
7
Hogan, 738 F.3d 1106, 1108 (9th Cir. 2013), is conclusive on the question of whether a dismissal
8
for failure to amend and failure to prosecute counts as a strike under §1915(g). At issue in Knapp
9
was whether the dismissal of an action for failure to comply with Federal Rule of Civil Procedure
10
8(a)’s “short and plain statement” requirement constituted a strike. The Ninth Circuit held that it
11
did. By expanding the scope of § 1915(g)’s “failure to state a claim” beyond Federal Rule of
12
Civil Procedure 12(b)(6), the court held that “after an incomprehensible complaint is dismissed
13
under Rule 8 and the plaintiff is given, but fails, to take advantage of the leave to amend, ‘the
14
judge [is] left with [] a complaint that, being irremediably unintelligible, [gives] rise to an
15
inference that the plaintiff could not state a claim.” 738 F.3d at 1110 (internal citations omitted).
16
In each of the three cases at issue here, the respective courts found on screening that
17
plaintiff failed to state a claim. Though the court agrees with Bontemps v. Callison and Keeton v.
18
Cox that, by granting leave to amend, the courts found that the defects identified on screening
19
may have been remediable, the plaintiff’s subsequent failure to take advantage of the leave to
20
amend gave “rise to an inference that [he] could not state a claim.” See Knapp, 783 F.3d at 1110.
21
The court therefore reaches the same conclusion as it did in Bontemps v. Sotak, that the dismissals
22
in Kramer I, Kramer II, and Gray for failure to file an amended complaint count as strikes.
23
Defendant has thus met his burden of establishing that plaintiff’s IFP status should be revoked,
24
and plaintiff has presented no evidence or argument rebutting that conclusion.
25
/////
26
27
28
3
Considerable judicial resources have been expended on this issue and related to this
plaintiff. See, e.g., Bontemps v. Callison, 2:13-cv-1360-KJM-AC, 2014 WL 2002419 (E.D. Cal.
May 15, 2014); Bontemps v. Barnes, 212-cv-2249-DAD, 2014 WL 4377945 (E.D. Cal. Sept. 3,
2014); Bontemps v. Sotak, 2:09-cv-2115-MCE-EFB, 2015 WL 812360 (E.D. Cal. Feb. 25, 2015).
4
1
Defendant also seeks an order to plaintiff to post a security bond in order to continue with
2
this action pursuant to Eastern District of California Local Rule 151(b), which provides, in
3
relevant part, that “[t]he provisions of Title 3A, part 2, of the California Code of Civil Procedure,
4
relating to vexatious litigants, are hereby adopted as a procedural Rule of this Court on the basis
5
of which the Court may order the giving of a security, bond, or undertaking . . . .” Upon a motion
6
for such an order, the California Code of Civil Procedure provides that:
7
[i]n any litigation pending in any court ... a defendant may move the
court ... for an order requiring the plaintiff to furnish security. The
motion must be based upon the ground, and supported by a
showing, that the plaintiff is a vexatious litigant and that there is not
a reasonable probability that he will prevail in the litigation against
the moving defendant.
8
9
10
11
Cal. Civ. Proc. Code § 391.1.
12
Defendant contends that plaintiff should be declared a vexatious litigant under section
13
391(b)(1) because in the preceding seven year period, plaintiff has commenced at least five
14
litigations in propria persona that have been finally determined adversely to him. Defendant also
15
submits evidence which, he contends, demonstrates that there is no reasonable probability that
16
plaintiff will prevail in this litigation. At this time, it is recommended that this portion of
17
defendant’s motion be denied without prejudice. In the event that the district judge assigned to
18
this case adopts the recommendation to revoke plaintiff’s IFP status, and plaintiff is able to pay
19
the filing fee in full, defendant may refile his motion seeking a declaration that plaintiff is a
20
vexatious litigant and an order for posting a security bond.
21
IV.
22
23
Conclusion
Based on the foregoing, IT IS HEREBY ORDERED that the Clerk randomly assign a
U.S. District Judge to this case; and
24
IT IS HEREBY RECOMMENDED that:
25
1.
26
27
28
Defendant’s June 2, 2015, Order Revoking Plaintiff’s IFP status (ECF No. 19) be
granted in part;
2.
The court’s March 25, 2014, order (ECF No. 9) granting IFP status be vacated and
plaintiff’s IFP status revoked; and
5
1
3.
Plaintiff be required to furnish the statutory filing fee of $400 to proceed with this
2
action and be admonished that failure to pay the filing fee within thirty days of any
3
order adopting this recommendation will result in dismissal of this action.
4
These findings and recommendations are submitted to the United States District Judge
5
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
6
after being served with these findings and recommendations, any party may file written
7
objections with the court and serve a copy on all parties. Such a document should be captioned
8
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
9
objections shall be filed and served within fourteen days after service of the objections. The
10
parties are advised that failure to file objections within the specified time may waive the right to
11
appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez
12
v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
13
DATED: April 5, 2016.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?