Hardney v. Turner et al

Filing 38

ORDER signed by Magistrate Judge Deborah Barnes on 11/8/16 ORDERING that within 20 days of the date of this order, defendants shall file a supplemental brief on the effect of Washington v. Los Angeles County Sheriffs Department, 833 F.3d 1048, 1056- 57 (9th Cir. 2016) on defendants contention that the dismissal of Hardney v. Villegas, 1:01-cv-5856 REC HGB P (E.D. Cal.) constitutes a strike under 28 U.S.C. § 1915(g). Defendants brief shall include: (a) a statement whether any claims raised i n Hardney v. Villegas sounded in habeas and sought injunctive relief; and (b) a discussion of whether the dismissal of Hardney v. Villegas was, in its entirety, based on a qualifying reason or reasons under § 1915(g). Within 20 days after service of defendants supplemental brief, plaintiff may file a response.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN HARDNEY,

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Plaintiff,

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No. 2:14-cv-2962 MCE DB P

v.

ORDER

L. TURNER, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis (“IFP”) with a civil

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rights action under 42 U.S.C. § 1983. Pending before the court is defendants’ motion to revoke

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plaintiff’s IFP status. (ECF No. 30.) In their motion, defendants argue that plaintiff accrued four

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strikes under 28 U.S.C. § 1915(g) prior to filing the present action. One of the prior cases cited

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by defendants is Hardney v. Villegas, 1:01-cv-5856 REC HGB P (E.D. Cal.). (See ECF No. 30-1

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at 4.) Defendants describe plaintiff’s claim in Hardney v. Villegas as an allegation that

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“Lieutenant Rodriguez abused his authority by finding Plaintiff guilty of a serious rules violation

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rather than an administrative rules violation.” (Id.) Defendants state that the district court

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“dismissed the complaint, finding that Hardney failed to state a claim for relief.” (Id.) In their

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reply brief, defendants further explain that the court dismissed Hardney . Villegas because it was

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barred by the rule of Heck v. Humphrey, 512 U.S. 477, 489 (1994). Defendants note that the

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Ninth Circuit Court of Appeals had not, at that time, addressed the issue of whether a dismissal

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based on Heck constitutes a strike under § 1915(g).

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After the briefing was submitted on defendants’ motion, the Ninth Circuit issued an

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opinion on this very issue. In Washington v. Los Angeles County Sheriff’s Department, 833 F.3d

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1048, 1056-57 (9th Cir. 2016), the Ninth Circuit held that a Heck dismissal may constitute a

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strike where the “pleadings present an ‘obvious bar to securing relief’ under Heck” and “the case

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as a whole is dismissed for a qualifying reason” under § 1915(g).

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This court requires additional briefing on the effect of Washington on defendants’
argument that the dismissal of Hardney v. Villegas constitutes a strike under § 1915(g).

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Defendants’ supplemental brief shall address, but is not limited to, two issues. First, defendants

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shall describe whether the dismissal of all claims raised in Hardney v. Villegas qualify as strikes.

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The court notes that in describing Hardney v. Villegas, defendants discussed only one of

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plaintiff’s claims in that case. A review of the findings and recommendations shows that plaintiff

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raised three claims. (See Ex. E to Req. for Judicial Notice (ECF No. 31) at 15-28.) Second,

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defendants shall describe whether plaintiff sought only damages in Hardney v. Villegas, or

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whether he also sought injunctive relief that sounds in habeas.

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Accordingly, IT IS HEREBY ORDERED as follows:

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1.

Within twenty days of the date of this order, defendants shall file a supplemental brief

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on the effect of Washington v. Los Angeles County Sheriff’s Department, 833 F.3d

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1048, 1056-57 (9th Cir. 2016) on defendants’ contention that the dismissal of Hardney

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v. Villegas, 1:01-cv-5856 REC HGB P (E.D. Cal.) constitutes a strike under 28 U.S.C.

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§ 1915(g). Defendants’ brief shall include: (a) a statement whether any claims raised

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in Hardney v. Villegas sounded in habeas and sought injunctive relief; and (b) a

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discussion of whether the dismissal of Hardney v. Villegas was, in its entirety, based

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on a qualifying reason or reasons under § 1915(g).

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2. Within twenty days after service of defendants’ supplemental brief, plaintiff may file a
response.
Dated: November 8, 2016

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DLB:9
DLB1/prisoner-civil rights/hard2962.ifp supp brf

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