Humes v. Sacramento County et al
Filing
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ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 07/31/18 DENYING 4 Motion for funds to facilitate discovery. A district court judge be assigned to this case. Also, RECOMMENDING that the courts dismissal of Hum es v. Spence, No. 2:17-cv-2617 MCE KJN P be formallydeclared a strike pursuant to 28 U.S.C. § 1915(g). Plaintiff be declared a three-strikes litigant pursuant to 28 U.S.C. § 1915(g). Plaintiffs motions to proceed in forma pauperis (ECF Nos. 3, 5) be DENIED. Motions 3 and 5 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JON HUMES,
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Plaintiff,
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No. 2:18-cv-0691 AC P
v.
SACRAMENTO COUNTY, et al.,
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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.
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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.
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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
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§ 636(b)(1).
Plaintiff has filed motions to proceed in forma pauperis. ECF Nos. 3, 5. Plaintiff has also
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filed a “motion for funds to facilitate discovery.” ECF No. 4. For the reasons stated below, the
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motion for funds will be denied. In addition, the court will recommend that plaintiff be formally
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declared a three-strikes litigant pursuant to 28 U.S.C. § 1915(g) and that plaintiff’s motions to
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proceed in forma pauperis be denied.
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I.
APPLICABLE LAW
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A.
28 U.S.C. § 1915(g): Three Strikes Rule
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Section 1915(g) states:
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In 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).
“It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court
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looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d
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1106, 1109 (9th Cir. 2013) (citation omitted). “[Section] 1915(g) should be used to deny a
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prisoner’s in forma pauperis status only when, after careful evaluation of the order dismissing an
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action, and other relevant information, the district court determines that the action was dismissed
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because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113,
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1121 (9th Cir. 2006).
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B.
Judicial Notice of Court Records
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It is well-established that a court may take judicial notice of its own records. See United
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States v. Author Servs., Inc., 804 F.2d 1520, 1523 (9th Cir. 1986) overruled on other grounds,
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United States v. Jose, 131 F.3d 1325, 1328-29 (9th Cir. 1997); Diamond v. Pitchess, 411 F.2d
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565, 566 (9th Cir. 1969) (court may take judicial notice of own records to determine whether in
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forma pauperis complaint should be dismissed). A judicially noticed fact must be one not subject
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to reasonable dispute in that it is either “(1) generally known within the territorial jurisdiction of
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the trial court or (2) capable of accurate and ready determination from sources whose accuracy
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cannot be reasonably questioned.” Fed. R. Evid. 201(b).
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II.
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RELEVANT FACTS AND ANALYSIS
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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See ECF Nos. 3, 5. A review of court records reveals that on at least three occasions, lawsuits
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filed by the plaintiff have been dismissed on the grounds that they were frivolous or malicious or
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failed to state a claim upon which relief may be granted. The court takes judicial notice of these
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cases and the fact that each of them constitutes a “strike” under 28 U.S.C. § 1915(g). They are
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the following:
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On June 7, 2018, this case was dismissed for failure to state a claim. See Humes I, ECF
Humes v. Sacramento County, No. 2:18-cv-0241 KJM AC P (“Humes I”):
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No. 10. At that time, the matter was declared a “strike” pursuant to 28 U.S.C. § 1915(g) and the
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case was closed. See id.
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▪
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On June 8, 2018, the court dismissed this case for failure to state a claim, and the matter
Humes v. Spence, No. 2:17-cv-2617 MCE KJN P (“Spence”):
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was closed. See Spence, ECF No. 15. Although the Spence court did not formally declare the
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matter a “strike” pursuant to 28 U.S.C. § 1915(g), the court’s dismissal of the matter for failure to
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state a claim makes it a “strike.” See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir, 2005)
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(holding that prior dismissals qualify as strikes if after reviewing dismissal orders, district court
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determines they were dismissed because they were frivolous or malicious or they failed to state a
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claim).
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▪
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On July 18, 2018, this case of plaintiff’s was also dismissed for failure to state a claim.
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See Faris, ECF No. 18. The court ordered that the case be counted as a “strike” pursuant to 18
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U.S.C. § 1915(g), and the matter was closed. See Faris, ECF No. 18.
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Humes v. Faris, No. 2:17-cv-2440 JAM AC P (“Faris”):
Given that plaintiff has three strikes on the record, he is precluded from proceeding in
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forma pauperis in this action unless he is “under imminent danger of serious physical injury.” 28
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U.S.C. § 1915(g). Plaintiff has not alleged any facts in his complaint which suggest that he is
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under imminent danger of serious physical injury.1 See generally ECF No. 1. Therefore, plaintiff
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will be required to submit the appropriate filing fee in order to proceed with this action.
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Because plaintiff may not proceed with this action prior to submitting the filing fee,
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plaintiff’s motion for funds to facilitate discovery (ECF No. 4) is premature. For this reason, it
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will be denied.
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The complaint asserts that plaintiff’s Fourteenth Amendment due process rights were violated
when the Sacramento County Superior Court issued a warrant for his arrest for having failed to
register as a sex offender, despite the fact that plaintiff’s sex crime convictions have been
expunged. See ECF No. 1 at 4.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for funds to facilitate discovery (ECF No. 4) is DENIED as
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premature, and
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2. A District Court Judge be assigned to this case.
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IT IS FURTHER RECOMMENDED that:
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1. The court’s dismissal of Humes v. Spence, No. 2:17-cv-2617 MCE KJN P be formally
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declared a “strike” pursuant to 28 U.S.C. § 1915(g);
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2. Plaintiff be declared a three-strikes litigant pursuant to 28 U.S.C. § 1915(g); and
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3. Plaintiff’s motions to proceed in forma pauperis (ECF Nos. 3, 5) be DENIED.
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These findings and recommendations are submitted to the United States District Judge
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assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, plaintiff may file written objections
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with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings
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and Recommendations.” Plaintiff is advised that failure to file objections within the specified
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time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153
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(9th Cir. 1991).
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IT IS SO ORDERED
DATED: July 31, 2018
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