Ellis v. Qualls et al
Filing
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ORDER signed by Magistrate Judge Allison Claire on 1/8/2015 VACATING the court's prior order denying plaintiff's IFP application; and this action is SUMMARILY DISMISSED as duplicative of Ellis v. Foulk, 2:14-cv-0802 AC, and accordingly, no filing fee is assessed. CASE CLOSED. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROBERT ELLIS,
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No. 2:14-cv-1875 AC P
Plaintiff,
v.
ORDER
D. QUALLS, et al.,
Defendants.
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I.
IN FORMA PAUPERIS
The court’s prior order in this case denied plaintiff’s application to proceed in forma
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pauperis, on the grounds that he was barred from proceeding under the “three strikes” rules of
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28 U.S.C. § 1915(g), based upon four cited cases.
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The court sua sponte reconsiders that decision, and finds that only two of the cited cases
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are strikes under the statute. See Ellis v. Runnels, 2:06-cv-0040-FCD-EFB, ECF No. 22 (E.D.
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Cal. May 16, 2007) (failure to state a claim: challenge to prison regulation that prohibited
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prisoners from having images depicting female frontal nudity); Ellis v. Reddy (Doctor), 2:11-cv-
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0363-GEB-CKD, ECF No. 27 (E.D. Cal. Dec. 16, 2011) (failure to state a claim: asserting
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inadequate medical treatment and failure to refer to outside doctor).
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“[A] dismissal must be final before it counts as a ‘strike’ for § 1915(g) purposes.” Silva v.
Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011). The dismissal is not final until plaintiff has
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exhausted or waived his appeals, including review by the Supreme Court. Id., at 1100-01 (“The
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district court's dismissal in Bush therefore ripened into a ‘strike’ once the time for filing a
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certiorari petition expired”).
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The time for appeal, or for filing a petition for writ of certiorari, had not expired for the
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other two cited cases, at the time plaintiff filed them. See Ellis v. Bergsen, 2:14-cv-0705-EFB,
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ECF No. 8 (E.D. Cal. Jul. 25, 2014) (failure to state a claim: challenge to prison guard’s
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confiscation of plaintiff’s adult magazine; order denying timely motion for reconsideration
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entered August 19, 2014, and plaintiff filed here on August 8, 2014, before the expiration of his
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deadline for appeal in Bergsen); Ellis v. Faulk, 2:13-cv-2197 CKD, ECF No. 11 (E.D. Cal. Feb.
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18, 2014) (frivolous and failure to state a claim: challenge to prison policy banning hair trimmers,
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nail clippers, and cream-filled pastries and cookies; Ninth Circuit mandate is dated October 6,
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2014, and plaintiff filed here on August 8, 2014, before the appeal was exhausted in Faulk).
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Therefore, the cited cases do not support a finding that plaintiff is barred by the three-strikes rule.
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II.
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DUPLICATIVE ACTION
On December 4, 2014, the court ordered plaintiff to show cause why his complaint should
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not be dismissed as duplicative of Ellis v. Foulk, 2:14-cv-0802 AC (E.D. Cal.). ECF No. 5.
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Plaintiff responded by stating that he had filed certain exhibits in error, and that “the petitioner
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request humbly that the petition no. 2:14-cv-0802 be dismissed, and that the exhibits be added to
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the original complaint for which there were intended.” ECF No. 6 at 1.
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The court finds that the cases are duplicative of each other, and interprets plaintiff’s
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response to be an admission that the cases are duplicative of each other. Plaintiff has requested
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that the court dismiss the first-filed case as duplicative of the later-filed case, but the court does
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not understand plaintiff’s explanation for why that should be done. The court accordingly will
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exercise its discretion to summarily dismiss the later-filed case as duplicative. See Adams v.
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California Dept. of Health Services, 487 F.3d 684, 688 (9th Cir. 2007) (the district court may
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exercise its discretion to dismiss a duplicative later-filed action).
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III.
CONCLUSION
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Accordingly, IT IS HEREBY ORDERED that:
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1.
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The court’s prior order denying plaintiff’s IFP application (ECF No. 7), is
VACATED.
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This action is SUMMARILY DISMISSED as duplicative of Ellis v. Foulk, 2:14-
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cv-0802 AC (E.D. Cal.), and accordingly, no filing fee is assessed.
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DATED: January 8, 2015
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