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)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WALTER SHANE LANGSTON, 12 Plaintiff, 13 14 No. 2:16-CV-2365-JAM-DMC-P v. FINDINGS AND RECOMMENDATIONS WILLIAMS, 15 Defendant. 16 Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 17 18 42 U.S.C. § 1983. Pending before the court is defendant’s unopposed motion to revoke plaintiff’s 19 in forma pauperis status (ECF No. 19). Defendant contends in forma pauperis status should be 20 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 21 22 follows: 25 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. 26 Id. 23 24 27 /// 28 /// 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 27 “[h]e must pay the filing fee at the time he initiates the suit.” Id. at 1236 (emphasis in original). 28 The Fifth and Sixth Circuits follow the same rule. See Adepegba v. Hammons, 103 F.3d 383 (5th 2 1 2 Cir. 1996); In re Alea, 86 F.3d 378 (6th Cir. 2002). This court has previously determined plaintiff has three or more “strikes.” See 3 Langston v. Sharma, No. 2:15-CV-1437-GEB-KJN. The court takes judicial notice of this prior 4 determinations, see Chandler v. U.S., 378 F.2d 906, 909 (9th Cir. 1967), and likewise concludes 5 plaintiff has three or more “strikes.” The court also finds plaintiff has not faced imminent danger 6 of serious bodily physical injury at the time the action was filed. See Andrews v. Cerbantes, 493 7 F.3d 1047, 1055 (9th Cir. 2007). Plaintiff claims of constitutional violations when he was housed 8 at the California Health Care Facility (CHCF) and the California Training Facility (CTF). See 9 ECF No. 1. When plaintiff filed this action, however, he was housed at Valley State Prison. See 10 id. Therefore, he was not under imminent danger of physical harm from prison officials at either 11 CHCF or CTF at the time he filed this lawsuit. 12 Based on the foregoing, the undersigned recommends that defendant’s unopposed 13 motion to revoke plaintiff’s in forma pauperis status (ECF No. 19) be granted and that this action 14 be dismissed without prejudice to re-filing upon pre-payment of the full filing fee. 15 These findings and recommendations are submitted to the United States District 16 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 17 after being served with these findings and recommendations, any party may file written objections 18 with the court. Responses to objections shall be filed within 14 days after service of objections. 19 Failure to file objections within the specified time may waive the right to appeal. See Martinez v. 20 Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 22 23 Dated: June 18, 2019 ____________________________________ DENNIS M. COTA UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?