Bowell v. California Department of Corrections et al

Filing 45

ORDER signed by District Judge Kimberly J. Mueller on 7/23/2019 GRANTING the parties 30 days in which to file supplemental briefs. (Huang, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES BOWELL,

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No. 2:17-cv-0981 KJM KJN P

Plaintiff,
v.

ORDER

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On May 1, 2019, the magistrate judge filed findings and recommendations, which

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were served on all parties and which contained notice to all parties that any objections to the

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findings and recommendations were to be filed within fourteen days. Plaintiff has filed

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objections to the findings and recommendations and defendants have filed a reply.

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This matter is before the court on defendants’ motion to revoke plaintiff’s in forma

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pauperis status in accordance with 28 U.S.C. § 1915(g). Resolution of the motion turns on

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whether the United States Supreme Court’s November 10, 2014 order in Bowell v. Smith, No. 14-

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6326 (S.Ct.), denying plaintiff’s motion for leave to proceed in forma pauperis and dismissing his
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petition for writ of certiorari with a citation to United States Supreme Court Rule 39.8 (hereafter

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Rule 39.8), is a strike under 28 U.S.C. § 1915(g). See ECF No. 38 at 3. As noted by the

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magistrate judge, defendants cite no decision of the United States Supreme Court in which that

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Court has identified dismissal of a petition for writ of certiorari as a § 1915(g) strike.

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This court has reviewed numerous orders of the United States Supreme Court

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denying motions to proceed in forma pauperis and dismissing petitions for writ of certioriari with

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citation to Rule 39.8. This review, while not exhaustive, has uncovered no order in which the

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Court relies on, or cites to, 28 U.S.C. § 1915(g). It has, however, revealed that since the April 26,

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1996 effective date of 28 U.S.C. § 1915(g), the Court has continued to rely on Martin v. District

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of Columbia Court of Appeals, 506 U.S. 1 (1992) (per curiam) to bar future filings from litigants

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who have “abused” the Court’s processes through this year, and has apparently not used the

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provisions of 28 U.S.C. § 1915(g) to limit filings in that Court. For example, in Judd v. U.S. Dist.

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Court for Western Dist. Of Texas, 528 U.S. 5 (1999), the Court relied on Martin to bar

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prospective filings in noncriminal cases from Judd, a pro se litigant who had a total of 12

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frivolous filings in the Supreme Court. It appears that Judd was a federal prisoner at all times

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relevant to the Supreme Court’s 1999 decision. See, e.g., Judd v. United States District Court,

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180 F.3d 262, 1999 WL 274610 (5th Cir. 1999)1; Judd v. Obama, 2013 WL 1873089 (C.D.Cal.

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2013).

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The foregoing raises the following question: Why should this court treat an order

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of the United States Supreme Court based on Rule 39.8 as a § 1915(g) strike if the United States

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Supreme Court does not? Good cause appearing, the parties will be granted a period of thirty

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days in which to file supplemental briefs addressing this question.

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IT IS SO ORDERED.
DATED: July 23, 2019.

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UNITED STATES DISTRICT JUDGE

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In accordance with Fifth Circuit Rule 47.5.4, this unpublished opinion is cited solely to establish
that Judd was a prisoner in 1999.
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