Langston v. Williams

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 06/18/19 RECOMMENDING that defendant's unopposed motion to revoke plaintiff's in forma pauperis status 19 be granted and that this action be dismissed without prejudice to re-filing upon pre-payment of the full filing fee. Motion to Revoke IFP Status 19 referred to Judge John A. Mendez. 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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WALTER SHANE LANGSTON,

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Plaintiff,

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No. 2:16-CV-2365-JAM-DMC-P

v.

FINDINGS AND RECOMMENDATIONS

WILLIAMS,

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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 is defendant’s unopposed motion to revoke plaintiff’s

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in forma pauperis status (ECF No. 19). Defendant contends in forma pauperis status should be

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revoked pursuant to the Prison Litigation Reform Act (PLRA).
The PLRA’s “three strikes” provision, found at 28 U.S.C. § 1915(g), provides as

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

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

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

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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 (5th
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Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002).
This court has previously determined plaintiff has three or more “strikes.” See

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Langston v. Sharma, No. 2:15-CV-1437-GEB-KJN. The court takes judicial notice of this prior

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determinations, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967), and likewise concludes

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plaintiff has three or more “strikes.” The court also finds plaintiff has not faced imminent danger

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of serious bodily physical injury at the time the action was filed. See Andrews v. Cerbantes, 493

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F.3d 1047, 1055 (9th Cir. 2007). Plaintiff claims of constitutional violations when he was housed

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at the California Health Care Facility (CHCF) and the California Training Facility (CTF). See

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ECF No. 1. When plaintiff filed this action, however, he was housed at Valley State Prison. See

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id. Therefore, he was not under imminent danger of physical harm from prison officials at either

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CHCF or CTF at the time he filed this lawsuit.

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Based on the foregoing, the undersigned recommends that defendant’s unopposed

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motion to revoke plaintiff’s in forma pauperis status (ECF No. 19) be granted and that this action

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be dismissed without prejudice to re-filing upon pre-payment of the full filing fee.

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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 objections

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

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

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

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Dated: June 18, 2019
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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