Freeman v. Lynch et al
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 07/11/18 RECOMMENDING defendants motion to revoke plaintiffs in forma pauperis status 17 be denied. Plaintiffs motions for injunctive relief 23 , 26 and 43 ) be denie d. Plaintiffs motions for summary judgment 21 and 25 be denied without prejudice to renewal following the close of discovery. Motions 17 , 21 , 23 , 25 , 26 and 43 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, 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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TRAVON LEON FREEMAN,
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Plaintiff,
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No. 2:16-CV-0705-MCE-CMK-P
vs.
FINDINGS AND RECOMMENDATIONS
E. LYNCH,
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Defendant.
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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: (1) defendant’s motion (Doc. 17) to revoke
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plaintiff’s in forma pauperis status; (2) plaintiff’s motions for injunctive relief (Docs. 23, 26, and
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43); and (3) plaintiff’s motions for summary judgment (Docs. 21 and 25).
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DISCUSSION
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Defendant’s Motion to Revoke Plaintiff’s In Forma Pauperis Status
The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as
follows:
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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. Dismissals for failure to exhaust
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available administrative remedies generally do not count as “strikes” unless the failure to exhaust
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is clear on the face of the complaint. See Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015).
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Dismissed habeas petitions also generally do not count as “strikes” under § 1915(g). See
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Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). Where, however, a dismissed habeas
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action was merely a disguised civil rights action, the district court may conclude that it counts as
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a “strike.” See id. at n.12.
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Defendant first cites Freeman v. Hynse, et al., E. Dist. Cal. Case No. 1:09-CV-
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2146-GBC, Freeman v. Julious, et al., E. Dist. Cal. Case No. 1:09-CV-2254-DLB, and Freeman
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v. Adams, et al., E. Dist. Cal. Case No. 1:09-CV-2129-SKO.1 In those cases, plaintiff had
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consented to the exercise of final jurisdiction by a Magistrate Judge and no defendants had yet
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been served. Based on plaintiff’s consent alone, the assigned Magistrate Judges dismissed the
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actions, concluding in all three cases that plaintiff had failed to state a claim upon which relief
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The court may take judicial notice of its own records. See Chandler v. U.S., 378
F.2d 906, 909 (9th Cir. 1967).
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could be granted. In Williams v. King, ___ F.3d ___ (9th Cir. 2017), the Ninth Circuit recently
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held that, absent consent from all parties – even defendants who had not yet been served – a
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Magistrate Judge is without jurisdiction to issue a final order. In light of this recent authority, the
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court is not convinced that the dismissals in the above-cited cases can constitute “strikes.”
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Specifically, absent consent of all parties, the Magistrate Judges lacked the authority to dismiss
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those actions.2 A review of this court’s records reveals that, other than these three actions,
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plaintiff has not had any other cases dismissed as frivolous or for failure to state a claim.3
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Defendant also cites a case from the Central District of California, Freeman v.
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Baca, et al., C. Dist. Cal. Case No. 2:06-CV-4979-UA-AN. That case was dismissed by a
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District Judge because plaintiff’s failure to exhaust available administrative remedies was
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evident on the face of the complaint. The court finds that this dismissal counts as a strike. See
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Richey, 807 F.3d at 1208.
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Finally, defendant cites Freeman v. Julious, et al., E. Dist. Cal. Case No. 1:09-CV-
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2213-SMS, a habeas corpus case dismissed for failure to state a claim. Regardless of whether the
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court may construe the dismissal of a habeas case as a “strike,” the matter was decided by a
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Magistrate Judge in the absence of consent from all parties, including unserved parties. Thus,
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even if the dismissal is a “strike,” and even though plaintiff did not appeal, the dismissal was
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issued by a Magistrate Judge who lacked jurisdiction to do so.
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Because defendant has failed to identify three or more prior “strikes,” defendant
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has not shown a basis for revocation of plaintiff’s in forma pauperis status.
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While plaintiff did not appeal the orders dismissing these prior actions, the Ninth
Circuit has yet to address the impact of the failure to appeal a final order issued by a Magistrate
Judge in the absence of consent by all parties on it’s holding in Williams.
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One other action in this court – Freeman v. Finley, et al., E. Dist. Cal. Case No.
1:10-CV-0640-AWI-GSA – was dismissed for lack of prosecution and failure to comply with
court rules and orders and does not constitute a “strike.”
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B.
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Plaintiff’s Motions for Injunctive Relief
Plaintiff has filed three motions requesting injunctive relief. In his motions,
plaintiff asks the court to direct the return of various items of personal property.
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The legal principles applicable to requests for injunctive relief, such as a
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temporary restraining order or preliminary injunction, are well established. To prevail, the
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moving party must show that irreparable injury is likely in the absence of an injunction. See
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Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th Cir. 2009) (citing Winter v. Natural Res.
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Def. Council, Inc., 129 S.Ct. 365 (2008)). To the extent prior Ninth Circuit cases suggest a lesser
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standard by focusing solely on the possibility of irreparable harm, such cases are “no longer
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controlling, or even viable.” Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046,
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1052 (9th Cir. 2009). Under Winter, the proper test requires a party to demonstrate: (1) he is
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likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of an
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injunction; (3) the balance of hardships tips in his favor; and (4) an injunction is in the public
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interest. See Stormans, 586 F.3d at 1127 (citing Winter, 129 S.Ct. at 374).
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In this case, injunctive relief is not warranted because plaintiff has not
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demonstrated that he is likely to suffer irreparable harm absent an order directing the return of his
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personal property.
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C.
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Plaintiff’s Motions for Summary Judgment
Plaintiff has filed a motion entitled “Plaintiff’s Reply to Defendant’s and
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Plaintiff’s Motion for Summary judgment” (Doc. 21). He has also filed a motion entitled
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“Requesting Summary Judgment in Favor of Plaintiff on Fact of Imminent Danger If Proven”
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(Doc. 25). Both motions were filed within 30 days of the court’s October 11, 2017, discovery
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and scheduling order, and neither motion is accompanied by a statement of undisputed facts as
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required by Local Rule 260(a).
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Pursuant to Federal Rule of Civil Procedure 56(d), the court may deny summary
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judgment where the non-moving party has shown that it cannot present facts essential to oppose
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the motion. Here, defendant has made this showing. Specifically, in opposition to both motions,
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defendant Lynch states that, because the motions were filed so shortly after the commencement
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of discovery under the court’s discovery and scheduling order, and because discovery was stayed
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pending resolution of defendant’s motion to revoke plaintiff’s in forma pauperis status, he has
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not had time to conduct any meaningful discovery. In particular, there has been insufficient time
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for defendant to notice and take plaintiff’s deposition or obtain third-party discovery from people
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plaintiff claims were witnesses to his interaction with defendant. Given that no discovery has
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taken place, the court finds that consideration of plaintiff’s motions for summary judgment is not
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appropriate at this time. See Fed. R. Civ. P. 56(d); Klingele v. Eikenberry, 849 F.2d 409 (9th
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Cir. 1988); Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes of Fort Peck
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Reservation, 323 F.3d 767 (9th Cir. 2003).
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CONCLUSION
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Based on the foregoing, the undersigned recommends that:
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Defendant’s motion to revoke plaintiff’s in forma pauperis status (Doc.
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Plaintiff’s motions for injunctive relief (Docs. 23, 26, and 43) be denied;
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Plaintiff’s motions for summary judgment (Docs. 21 and 25) be denied
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17) be denied;
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without prejudice to renewal following the close of discovery.
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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: July 11, 2018
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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