Moon v. Lizarraga et al

Filing 44

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 2/17/17 RECOMMENDING that defendant's motion (Doc. 38 ) for revocation of plaintiff's in forma pauperis status be granted; Plaintiff's in forma pauperis s tatus be revoked; This action be dismissed without prejudice to re- filing upon prepayment of the filing fee; and plaintiff's motion (Doc. 41 ) be denied as moot. Referred to Judge Morrison C. England, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ADRIAN MOON,

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No. 2:15-CV-0027-MCE-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

JOE A. LIZARRAGA, et al.,

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Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion (Doc. 38) for

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revocation of plaintiff’s in forma pauperis status.

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The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as
follows:
In no event shall a prisoner bring a civil action . . . under this
section if the prisoner has, on three or more prior occasions, while
incarcerated or detained . . ., brought an action . . . in a court of the United
States that was dismissed on the ground 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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Id.
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Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the

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reasons set forth in the statute, such “strikes” preclude the prisoner from proceeding in forma

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pauperis unless the imminent danger exception applies. Dismissed habeas petitions do not count
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as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005).

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Where, however, a dismissed habeas action was merely a disguised civil rights action, the district

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court may conclude that it counts as a “strike.” See id. at n.12.

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When in forma pauperis status is denied, revoked, or otherwise unavailable under

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§ 1915(g), the proper course of action is to dismiss the action without prejudice to re-filing the

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action upon pre-payment of fees at the time the action is re-filed. In Tierney v. Kupers, the Ninth

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Circuit reviewed a district court’s screening stage dismissal of a prisoner civil rights action after

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finding under § 1915(g) that the plaintiff was not entitled to proceed in forma pauperis. See 128

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F.3d 1310 (9th Cir. 1998). Notably, the district court dismissed the entire action rather than

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simply providing the plaintiff an opportunity to pay the filing fee. The Ninth Circuit held that the

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plaintiff’s case was “properly dismissed.” Id. at 1311. Similarly, in Rodriguez v. Cook, the

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Ninth Circuit dismissed an inmate’s appeal in a prisoner civil rights action because it concluded

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that he was not entitled to proceed in forma pauperis on appeal pursuant to the “three strikes”

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provision. See 169 F.3d 1176 (9th Cir. 1999). Again, rather than providing the inmate appellant

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an opportunity to pay the filing fee, the court dismissed the appeal without prejudice and stated

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that the appellant “may resume this appeal upon prepaying the filing fee.”

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This conclusion is consistent with the conclusions reached in at least three other

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circuits. In Dupree v. Palmer, the Eleventh Circuit held that denial of in forma pauperis status

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under § 1915(g) mandated dismissal. See 284 F.3d 1234 (11th Cir. 2002). The court specifically

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held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because

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“[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original).

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The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383

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(5th Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002).

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Defendant argues that plaintiff’s in forma pauperis status must be revoked because

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he has had three or more prior cases dismissed as frivolous, malicious, or for failure to state a

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claim. Upon review of the previous actions cited by defendant, the court agrees that plaintiff has
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had at least three prior “strikes.” Specifically, the following cases were dismissed for failure to

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state a claim: (1) Moon v. Johnson, et al., C. Dist. Cal. No. 2:12-CV-1514 (dismissed March 8,

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2012); (2) Moon v. Johnson, et al., C. Dist. Cal. No. 5:12-CV-0632 (dismissed May 7, 2012); (3)

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Moon v. Johnson, et al., C. Dist. Cal. No. 2:12-CV-4792 (dismissed June 11, 2012).1 Because

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plaintiff has not alleged facts suggesting imminent danger of serious injury, plaintiff is not

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entitled to proceed in forma pauperis.

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Based on the foregoing, the undersigned recommends that:

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1.

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Defendant’s motion (Doc. 38) for revocation of plaintiff’s in forma

pauperis status be granted;

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Plaintiff’s in forma pauperis status be revoked;

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3.

This action be dismissed without prejudice to re-filing upon prepayment of

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the filing fee; and

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4.

Plaintiff’s motion (Doc. 41) be denied as moot.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: February 17, 2017

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______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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Plaintiff failed to disclose any of these prior actions.
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