Davis v. Reames, et al

Filing 39

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/16/18 RECOMMENDING that this action be dismissed without prejudice to re-filing upon pre-payment of the filing fees. Motion 30 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

DESHAWN DAVIS,

12
13
14

No. 2:15-CV-2027-JAM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATIONS

D. REAMES, et al.,

15

Defendants.

16

/

17

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

18

42 U.S.C. § 1983. Pending before the court is defendants’ motion to revoke plaintiff’s in forma

19

pauperis status (Doc. 30).

20
21
22
23
24

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.

25
Id.
26
1

1

Thus, when a prisoner plaintiff has had three or more prior actions dismissed for one of the

2

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

3

pauperis unless the imminent danger exception applies. Dismissals for failure to exhaust

4

available administrative remedies generally do not count as “strikes” unless the failure to exhaust

5

is clear on the face of the complaint. See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015).

6

Dismissed habeas petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398

7

F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a

8

disguised civil rights action, the district court may conclude that it counts as a “strike.” See id. at

9

n.12.

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

held that “the prisoner cannot simply pay the filing fee after being denied IFP status” because
2

1

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

2

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

3

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

4

In this case, defendants have identified three prior cases which were dismissed as

5

frivolous, malicious, or for failure to state a claim. See Davis v. Wu, No. 2:16-CV-1598 (C.

6

Dist. Cal. 2016); Davis v. J. Asadoorian, No. 2:17-CV-4423 (C. Dist. Cal. 2017); and Davis v.

7

Khodabakhshyan, No. 2:17-CV-2806 (C. Dist. Cal. 2018). Given these prior dismissals, and

8

because plaintiff is not claiming imminent danger of serious physical injury, the court agrees with

9

defendants that plaintiff’s in forma pauperis status should be revoked.

10
11

Based on the foregoing, the undersigned recommends that this action be dismissed
without prejudice to re-filing upon pre-payment of the filing fees.

12

These findings and recommendations are submitted to the United States District

13

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

14

after being served with these findings and recommendations, any party may file written

15

objections with the court. Responses to objections shall be filed within 14 days after service of

16

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

17

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

18
19
20
21

DATED: August 16, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
3