Heilman v. Whitten, et al

Filing 26

ORDER signed by Magistrate Judge Carolyn K. Delaney on 7/7/16 ORDERING that defendants' motion to revoke plaintiff's IFP status (ECF No. 22 ) is GRANTED; Plaintiff shall pay the $400 filing fee. It is noted that the Court is in receipt of this payment by Plaintiff; and the Clerk shall serve a copy of this order on the Financial Department. (cc Financial)(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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THOMAS HEILMAN,

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Plaintiff,

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No. 2:15-cv-1585 MCE CKD P

v.

ORDER

A. WHITTEN, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983. On September 25, 2015, the undersigned granted plaintiff’s request to proceed in

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forma pauperis. (ECF No. 6.) On February 10, 2016, the undersigned ordered service of the First

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Amended Complaint on defendants Dooley, Mendosa, and Whitten. (ECF No. 15.) Plaintiff

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claims that defendants unlawfully retaliated against him by destroying his property when he was

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transferred to another prison in 2012. (ECF No. 11.)

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Before the court is defendants’ April 29, 2016 motion to revoke plaintiff’s in forma

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pauperis status on the ground that plaintiff is a “Three Strikes” inmate under 28 U.S.C. § 1915(g).

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(ECF No. 22.) Plaintiff has not filed an opposition. For the reasons set forth below, the court will

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grant the motion.

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I. Motion to Revoke IFP Status
28 U.S.C. § 1915 permits any court of the United States to authorize the commencement

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

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

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[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).

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

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

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Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g))

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makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma

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pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination

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thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999). 28 U.S.C.

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§1915(g) should be used to deny a prisoner’s in forma pauperis status only upon a determination

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

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dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113,

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1121 (9th Cir. 2005). Defendant has the burden to “produce documentary evidence that allows

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

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because they were ‘frivolous, malicious or fail[ed] to state a claim.’” Id., at 1120, quoting

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§ 1915(g). Once defendants meet their initial burden, it is plaintiff’s burden to explain why a

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prior dismissal should not count as a strike. Id. If the plaintiff fails to meet that burden,

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plaintiff’s IFP status should be revoked under § 1915(g). Id.

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

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

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district court’s dismissal of a case does not count as a ‘strike’ under § 1915(g) until the litigant
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has exhausted or waived his opportunity to appeal. This means a dismissal ripens into a ‘strike’

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

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

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

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

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direct appeal expired.” Id., n.6.

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II. Discussion

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Defendants submit court records indicating that plaintiff has been deemed a Three Strikes
inmate under 28 U.S.C. § 1915(g).1 Heilman v. Dillen, No. 2:14-cv-6298 (C.D. Cal. Nov. 2,

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2015), Order dated Nov. 2, 2015. (ECF No. 20, Ex. A; see also ECF No. 25.) In Dillen, the court

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found that the following actions counted as strikes under § 1915(g) because they were dismissed

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as frivolous or failing to state a claim: (1) Heilman v. Fisher, No. 2:09-cv-0197 (E.D. Cal. 2009);

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Heilman v. Fry, No. 2:08-cv-2478 (E.D. Cal. 2008); (3) Heilman v. CDCR, No. 2:11-cv-3452

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(E.D. Cal. 2011); and Heilman v. Paramo, No. 3:13-cv-01860 (S.D. Cal. 2013).2 Having

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reviewed the Fisher, Fry, CDCR, and Paramo cases, the court agrees that plaintiff has sustained

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three strikes under § 1915(g). (See ECF No. 25.) Moreover, plaintiff has not credibly alleged

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“imminent danger of serious physical injury” under § 1915(g).

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Accordingly, IT IS HEREBY ORDERED that:

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1. Defendants’ motion to revoke plaintiff’s IFP status (ECF No. 22) is granted;

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2. Plaintiff shall pay the $400 filing fee. It is noted that the Court is in receipt of this

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payment by Plaintiff; and

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A court may take judicial notice of court records. See 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).
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In Heilman v. Furster, No. 2:15-cv-6366 (C.D. Cal. Nov. 10, 2015), the court relied on the
findings in Dillen to revoke plaintiff’s IFP status. (ECF No. 20, Ex. B.)

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3. The Clerk shall serve a copy of this order on the Financial Department.
Dated: July 7, 2016

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2 / heil1585.threestrikes

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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