Wilkins v. Gonzalez, et al.

Filing 59

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 10/23/2017 RECOMMENDING defendants' 50 motion to revoke plaintiffs in forma pauperis status be denied. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KEENAN WILKINS,

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No. 2:16-cv-0347 KJM KJN P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

PAUL GONZALES, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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

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forma pauperis status. (ECF No. 50.) For the reasons stated herein, the undersigned recommends

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that defendants’ motion be denied.

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Title 28 U.S.C. § 1915 generally permits any court of the United States to authorize the

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

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an affidavit 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.
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28 U.S.C. § 1915(g).

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In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005), the Ninth Circuit explained,

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“The PLRA does not define the terms ‘frivolous,’ or ‘malicious,’ nor does it define dismissals for

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failure to ‘state a claim upon which relief could be granted’... We have held that the phrase ‘fails

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to state a claim on which relief may be granted,’ as used elsewhere in § 1915, ‘parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).” In defining the terms frivolous and

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malicious, the Andrews court held, “[W]e look to their ‘ordinary, contemporary, common

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meaning.’...Thus, a case is frivolous if it is ‘of little weight or importance: having no basis in law

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or fact’...A case is malicious if it was filed with the ‘intention or desire to harm another.’”

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Andrews, 398 F.3d at 1121 (internal quotations and citations omitted).

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The Andrews court further noted, “[n]ot all unsuccessful cases qualify as a strike under

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§ 1915(g). Rather, § 1915(g) should be used to deny a prisoner’s IFP status only when, after

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careful evaluation of the order dismissing an action, and other relevant information, the district

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court determines that the action was dismissed because it was frivolous, malicious or failed to

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state a claim.” Id. at 1121. In making the determination whether a dismissal counts as a strike, it

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is the substance of the dismissal which is determinative, not the styling of the dismissal. El–

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Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016); O’Neal v. Price, 531 F.3d 1146, 1153

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(9th Cir. 2008).

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Defendants argue that plaintiff has five strikes pursuant to 42 U.S.C. § 1915(g). The
undersigned discusses each alleged strike separately herein.

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97-cv-2298

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Defendants argue that Brown aka Wilkins v. North County Jail, No. 3: 97-2298 MMC

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(N.D. Cal.), counts as a strike. Exhibits attached to defendants’ motion show that the United

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States District Court for the Northern District of California dismissed 97-2298 for failing to state

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a claim upon which relief may be granted on August 4, 2017. (ECF No. 50-3 at 8.) Thus, 97-

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2298 is a strike pursuant to 28 U.S.C. § 1915(g).

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08-cv-3850

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Defendants next argue that Wilkins v. Ahorn, No. 3: 08-cv-3850 MMC (N.D.), counts as a

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strike. Exhibits attached to defendants’ motion to dismiss show that the Northern District

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dismissed this action with prejudice on February 9, 2009. (ECF No. 50-4 at 15.) Plaintiff filed

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08-3850 as a class action challenging conditions in the Santa Rita Jail. (Id. at 14.) The Northern

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District dismissed the action on grounds that plaintiff was not able to act as a class representative.

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(Id.) The Northern District also found that plaintiff had a currently pending action before the

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Northern District, filed on his own behalf, containing claims that were identical to those raised in

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08-3850. (Id.) As noted by defendants, the Northern District did not identify whether the

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dismissal was because the complaint was frivolous, malicious or failed to state a claim.

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Defendants argue that 08-cv-3850 counts as a strike because it was dismissed as

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duplicative of another action filed by plaintiff in the Northern District. Defendants argue that

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other courts have determined that actions are frivolous or malicious under 28 U.S.C. § 1915(g)

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when they present duplicative allegations and claims from the same plaintiff in prior actions.

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Some courts in this district have held that actions dismissed as duplicative are frivolous

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and thus count as strikes under § 1915(g). See, e.g., Turner v. Gibson, 2013 WL 5587391, *1

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(E.D.Cal. Oct.10, 2013), citing Cato v. U.S., 70 F.3d 1103, 1105 n.2 (9th Cir. 1995). In Bailey v.

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Johnson, 846 F.2d 1019, 1021 (5th Cir. 1988) the Fifth Circuit Court of Appeals characterized

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duplicative litigation as “malicious.” In Cato v. U.S., 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995), the

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Ninth Circuit, citing Bailey, agreed that where a complaint repeats pending or previously litigated

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claims, it is subject to dismissal under the in forma pauperis statute as being frivolous or

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malicious.

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As discussed above, plaintiff attempted to bring 08-3850 as a class action, although he had

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a pending individual suit raising the same claims. Because plaintiff attempted to bring 08-3850

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as a class action, the undersigned does not find that it was maliciously brought. While 08-3850

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contained the same claims as plaintiff’s individual action, it appears that plaintiff filed it based on

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the mistaken belief that he was authorized to represent the class. Based on these circumstances,

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the undersigned finds that 08-3850 does not qualify as a strike pursuant to 28 U.S.C. § 1915(g).
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11-cv-2704

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Defendants next argue that Brown v. Alameda, 11-cv-2704 LHK (N.D. Cal.), counts as a

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strike. On May 1, 2012, the Northern District dismissed 11-2704 for failing to comply with

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Federal Rules of Civil Procedure 18 and 20. (ECF No. 50-5 at 39-41.) The Northern District

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found that the amended complaint contained improperly joined defendants and claims. (Id.)

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The Northern District did not dismiss 11-2704 on the grounds that plaintiff failed to state

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claims upon which relief may be granted. The Northern District also did not dismiss 11-2704 on

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the grounds that plaintiff’s claims were frivolous, i.e., “of little weight or importance: having no

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basis in law or fact…” Andrews, 398 F.3d at 1121. Finally, the Northern District did not dismiss

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11-2704 on the grounds that it was malicious, i.e., filed with the “intention or desire to harm

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another.” Id.

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Because the Northern District did not dismiss 11-2704 on the grounds that it was

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frivolous, malicious, or failed to state a claim upon which relief may be granted, the undersigned

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finds that 11-2704 does not qualify as a strike pursuant to 42 U.S.C. § 1915(g).1 Rather, 11-2704

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is an unsuccessful case that does not qualify as a strike. Andrews, 398 F.3d at 1121.

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12-cv-16170

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Defendants next argue that the Ninth Circuit’s dismissal of plaintiff’s appeal of the district

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court’s order in 11-2704 counts as a strike. The background to this appeal follows herein.

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After plaintiff appealed the dismissal of 11-2704, in 12-16170 the Ninth Circuit referred

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the case back to the district court to determine whether plaintiff’s in forma pauperis status should

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continue on appeal or if the appeal was taken in bad faith. (ECF No. 50-6 at 1.) The district court

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certified that the appeal was frivolous and therefore not taken in good faith. (ECF No. 50-5 at 45-

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46.)

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In 12-16170, the Ninth Circuit then issued an order confirming the district court’s

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certification that plaintiff’s appeal was frivolous. (ECF No. 50-6 at 3.) The Ninth Circuit denied

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Dismissal of a complaint, in its entirety, for improper joinder is not proper. See Williams v.
California Department of Corrections, 467 Fed.Appx. 672 at *674 (9th Cir. 2012), citing Fed. R.
Civ. P. 21 (“Misjoinder of parties is not a ground for dismissing an action.”)
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plaintiff’s application to proceed in forma pauperis on appeal and ordered him to pay the filing

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fee. (Id.) After plaintiff failed to pay the filing fee, on September 12, 2012, the Ninth Circuit

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dismissed the appeal for plaintiff’s failure to pay the filing fee. (Id. at 5.)

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The issue before the undersigned is whether the dismissal of plaintiff’s appeal for failure

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to file an in forma pauperis application, after the appeal was found frivolous, counts as a strike

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under § 1915(g). In considering whether 12-16170 qualifies as a § 1915(g) strike, the

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undersigned notes the following cases.

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In Hafed v. Fed. Bureau of Prison, 635 F.3d 1172, 1179 (10th Cir. 2011), the Tenth

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Circuit held that an appeal dismissed for failure to pay the filing fee, after the appeal was found

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frivolous, is a § 1915(g) strike. In Hafed, the plaintiff appealed a district court order dismissing

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an action as frivolous. Id. at 1178. The Tenth Circuit stated that the determination that the appeal

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was frivolous by the appellate court when it denied the appellant’s motion to proceed in forma

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pauperis on appeal “can properly be termed the ‘but for’ cause of that court’s subsequent

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dismissal …it would be ‘hypertechnical’ to hold that the resulting dismissal for nonpayment was

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not a strike.” Id.

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In contrast to the Tenth Circuit, the Eleventh Circuit in Daker v. Commissioner, Georgia

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Department of Corrections, 820 F.3d 1278 (11th Cir. 2016), held that an appeal dismissed for

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failure to prosecute, after having been found frivolous, does not count as a § 1915(g) strike,

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apparently without regard for the reasons behind the dismissal by the district court.

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In Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017), the Ninth Circuit found

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that actions dismissed for failure to file amended complaints, after the original complaints were

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dismissed for failing to state a claim, count as strikes under 28 U.S.C. § 1915(g). The Ninth

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Circuit found that dismissals, under these circumstances, “’rang the PLRA bells of … failure to

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state a claim,’ even if the ‘procedural posture’ meant that the entry of judgment in each case was

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delayed until it became clear that Harris would not file an amended complaint that did state a

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claim.” Id. at 1142, citing Thompson v. Drug Enf’t Admin., 492 F.3d 428, 433 (D.C. Cir. 2007).

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Based on the circumstances surrounding 12-16170, the undersigned finds that it does not

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qualify as a strike under § 1915(g). If the court adopts the reasoning of the Eleventh Circuit in
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Daker, 12-16170 is not a strike. Appeal 12-16170 can also be distinguished from Harris and

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Hafed because the underlying order by the Northern District did not dismiss plaintiff’s case as

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frivolous, malicious or for failing to state a claim upon which relief may be granted. Instead, the

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district court dismissed the case based on improper joinder. Based on these circumstances, even

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though the district certified that the appeal was not taken in good faith, which the Ninth Circuit

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confirmed, plaintiff’s appeal did not ring the PLRA bell.

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13-cv-17060

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Defendants next argue that the Ninth Circuit’s dismissal of plaintiff’s appeal no. 13-17060

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is a § 1915(g) strike. The background to this appeal follows herein.

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Following the Ninth Circuit’s dismissal of appeal 12-16170, plaintiff filed two motions in

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the district court: a motion for relief from judgment pursuant to Federal Rule of Civil Procedure

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60(b) and a motion for administrative justice. (See ECF No. 50-5 at 48-49.) The district court

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denied both of these post-judgment motions in one order. (Id.) In particular, the district court

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denied the 60(b) motion as untimely. (Id.) The district court denied the motion for administrative

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justice on the grounds that it sought legal advice, which the court was not authorized to provide.

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(Id.)

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Plaintiff appealed the district court’s order denying his 60(b) motion and motion for

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administrative justice. In 13-17060, the Ninth Circuit referred the case back to the district court

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to determine whether plaintiff’s in forma pauperis status should continue on appeal, or if the

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appeal was taken in bad faith. (ECF No. 50-7 at 2.) The district court found that plaintiff’s

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appeal was frivolous and therefore not taken in good faith. (ECF No. 50-5 at 51-52.)

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In 13-17060, the Ninth Circuit issued an order confirming that plaintiff’s appeal was

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frivolous. (ECF No. 50-7 at 4-5.) The Ninth Circuit granted plaintiff twenty-one days to pay the

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filing fee. (Id.) On March 17, 2014, the Ninth Circuit dismissed the appeal after plaintiff failed

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to pay the filing fee. (Id. at 6.)

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Case 13-17060 is not a strike for the same reasons 12-16170 is not a strike. The district

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court order appealed in 13-17060 did not involve a finding of frivolousness, failure to state a

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claim or maliciousness. While the district court and the Ninth Circuit found that plaintiff’s appeal
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was frivolous, 13-17060 did not ring the PLRA bell.

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Conclusion

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For the reasons discussed above, the undersigned finds that plaintiff does not have three

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prior strikes pursuant to 28 U.S.C. § 1915(g). While other jurists may disagree with

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undersigned’s findings that four of the five cases discussed do not qualify as strikes, the

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undersigned does not enter orders finding § 1915(g) strikes lightly.2

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In the motion to dismiss, defendants also argue that plaintiff is collaterally estopped from

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challenging his ineligibility for in forma pauperis status under 28 U.S.C. § 1915(g) because the

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Northern District has previously determined that plaintiff has § 1915(g) strikes in four of the

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cases cited by defendants, 97-2298, 08-3850, 11-2704 and 13-17060. As discussed above, the

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undersigned did not find that 08-3850, 11-2704 and 13-17060 count as strikes under § 1915(g).

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On April 26, 2017, in Brown v. Contra Costa, 16-7016 TEH, the Northern District ordered

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plaintiff to show cause why the case should not be deemed to be three strikes barred and the

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application to proceed in forma pauperis denied based on 97-2298, 08-3850, 11-2704 and 13-

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17060. (ECF No. 50-8 at 1-5.) The district court denied plaintiff’s application to proceed in

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forma pauperis, but defendants in the instant action did not provide this court with a copy of the

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order making that finding. After plaintiff failed to pay the filing fee, the district court dismissed

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16-7016. (Id. at 7.) Plaintiff appealed the order denying his application to proceed in forma

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pauperis. (Id. at 15.)

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Assuming that the Northern District found the four cases cited above to count as strikes

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under 28 U.S.C. § 1915(g), while the undersigned gives such a decision significant consideration,

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this court is not bound by the decision of another district court.

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Accordingly, for the reasons discussed above, IT IS HEREBY RECOMMENDED that
defendants’ motion to revoke plaintiff’s in forma pauperis status (ECF No. 50) be denied.

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These findings and recommendations are submitted to the United States District Judge

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

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Neither party addresses the issue of whether plaintiff meets the imminent injury exception to
§ 1915(g). Accordingly, the undersigned also does not address this issue.
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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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the

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objections shall be filed and served within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 23, 2017

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Wilk347.mtd

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