Hardaway v. Chavez-Epperson et al

Filing 40

ORDER Granting Motion to Revoke Plaintiff's In Forma Pauperis Status; Granting Motion to Dismiss. Signed by Judge Ronald M. Whyte on 2/3/14. (jgS, COURT STAFF) (Filed on 2/3/2014)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SONNY RAY HARDAWAY,

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Plaintiff,

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v.
M. CHAVEZ-EPPERSON, et al.,

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Defendants.

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No. C 12-5459 RMW (PR)
ORDER GRANTING MOTION
TO REVOKE PLAINTIFF’S IN
FORMA PAUPERIS STATUS;
GRANTING MOTION TO
DISMISS

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Plaintiff, a state prisoner proceeding pro se, filed a civil rights complaint pursuant to 42

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U.S.C. § 1983. The court granted plaintiff’s motion to proceed in forma pauperis (“IFP”), and

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served the complaint on defendants. Defendants have filed a motion to revoke plaintiff’s IFP

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status and dismiss the action. Plaintiff has filed an opposition, and defendants have filed a reply.

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Defendants’ request for judicial notice is GRANTED. For the reasons stated below, the court

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GRANTS defendants’ motion.

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DISCUSSION
A.

Motion To Revoke IFP Status
The Prison Litigation Reform Act of 1995 (“PLRA”), enacted April 26, 1996, provides

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that a prisoner may not bring a civil action or appeal a civil judgment under 28 U.S.C. § 1915 “if

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the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility,
Order Granting Motion to Revoke Plaintiff’s In Forma Pauperis Status; Granting Motion to Dismiss
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brought an action or appeal in a court of the United States that was dismissed on the grounds that

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it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the

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prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). The phrase

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“fails to state a claim on which relief may be granted,” as used in § 1915(g), “parallels the

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language of Federal Rule of Civil Procedure 12(b)(6).” Andrews v. King, 398 F.3d 1113, 1121

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(9th Cir. 2005). A case is “frivolous” within the meaning of § 1915(g) if “it is of little weight or

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importance: having no basis in law or fact.” Id. (internal quotation and citation omitted).

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The plain language of the imminent danger clause in § 1915(g) indicates that “imminent
danger” is to be assessed at the time of filing, not at the time of the alleged constitutional

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violations. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 312 (3d Cir. 2001) (en banc). Plaintiff

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has the burden of proving that he is in imminent danger of serious physical injury.

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B.

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Plaintiff’s Prior “Strikes”
Defendants allege that while incarcerated, plaintiff has filed fifteen actions that have been

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dismissed on the basis that they were frivolous, malicious, or failed to state a claim. They set

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forth the following cases: (1) Hardaway v. Board of Prison Term, No. C 91-0658-CAL (N.D.

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Cal. March 7, 1991) (dismissing complaint for failure to state a claim) (Req. Judicial Not., Ex.

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A); (2) Hardaway v. Money, et al., No. 01-0458-FDC-DAD (E.D. Cal. March 7, 2001) (adopting

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report and recommendation to dismiss action for failure to state a claim) (Req. Judicial Not., Ex.

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E); (3) Hardaway v. Wright, et al., No. 01-0958-GEB-DAD (E.D. Cal. May 17, 2001) (adopting

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report and recommendation dismissing the case for failure to state a claim) (Req. Judicial Not.,

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Ex. J); (4) Hardaway v. Runnels, et al., No. 06-0451-ALA (E.D. Cal. March 6, 2006) (dismissing

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action and directing that it count as a “strike,” pursuant to Section 1915(g)) (Req. Judicial Not.,

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Ex. N); (5) Hardaway v. State of California, No. 06-0695-MCE-EFB (E.D. Cal April 19, 2006)

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(adopting report and recommendation dismissing action for failure to file a timely amended

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complaint) (Req. Judicial Not., Exs. R, S); (6) Hardaway v. Dept. of Corrections, et al., No. 06-

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1588-GEB-GGH (E.D. Cal. July 17, 2006 (same) (Req. Judicial Not., Exs. W, X); (7) Hardaway

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v. Olsen, et al., No. 06-1406-LJO-LJO (E.D. Cal. Oct. 5, 2006) (same) (Req. Judicial Not., Exs.

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CC, DD); (8) Hardaway v. Access Securepak, et al., No. 07-0254-OWW-SMS (E.D. Cal. Feb. 7,
Order Granting Motion to Revoke Plaintiff’s In Forma Pauperis Status; Granting Motion to Dismiss
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2007) (adopting report and recommendation that action be dismissed for failure to state a claim)

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(Req. Judicial Not., Exs. HH, II); (9) Hardaway v. State of California, et al., No. 08-1663-PMP-

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GWF (E.D. Cal. July 18, 2008) (same) (Req. Judicial Not., Exs. LL, MM); (10) Hardaway v.

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Twleve Jurors, No. 06-2983 JF (N.D. Cal. May 3, 2006) (dismissing for failure to state a claim

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and recognizing that plaintiff has had three strikes pursuant to Section 1915(g)) (Req. Judicial

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Not., Ex. PP); (11) Hardaway v. Barni, et al., No. 06-3637 JF (N.D. Cal. June 8, 2006) (same)

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(Req. Judicial Not., Ex. RR); (12) Hardaway v. Lambden, et al., No. 06-6578 JF (N.D. Cal. Oct.

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23, 2006) (same) (Req. Judicial Not., Ex. T); (13) Hardaway v. Specter, No. 06-6786 JF (N.D.

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Cal. Nov. 1, 2006) (same) (Req. Judicial Not., Ex. VV); (14) Hardaway v. Fogel, No. 08-3677

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WHA (N.D. Cal. Aug. 1, 2008) (dismissing action for failure to state a claim) (Req. Judicial

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Not., Ex. YY); and (15) Hardaway v. County of Alameda, et al., No. 08-4322 JF (N.D. Cal. Sept.

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15, 2008) (dismissing action under Heck v. Humphrey, 512 U.S. 477 (1994)) (Req. Judicial Not.,

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Ex. DD).

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In opposition, plaintiff does not argue that any of those fifteen cases would not count as a

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strike. A review of these cases demonstrate that they all qualify as “strikes” pursuant to Section

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1915(g). First, cases that are dismissed for failure to state a claim clearly count as strikes.

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Andrews, 398 F.3d at 1121 (“[Section] 1915(g) should be used to deny a prisoner’s IFP status

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only when, after careful evaluation of the order dismissing an action, and other relevant

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information, the district court determines that the action was dismissed because it was frivolous,

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malicious or failed to state a claim.”). Second, a dismissal for failure to prosecute an action

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constitutes a strike when it is based upon the plaintiff’s failure to file an amended complaint after

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the original complaint is dismissed for failure to state a claim. See, e.g., Peralta v. Martel, 2010

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WL 2629060, *5 (E.D. Cal. 2010) (dismissal for failure to prosecute without prejudice for failure

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to file an amended complaint constituted a “strike” under Section 1915(g) where it was “clear

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from the district court’s reasoning that failure to state a claim was a fully sufficient condition for

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dismissing” the complaint). Finally, when a case is dismissed under Heck, the complaint “fails

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to state a claim upon which relief can be granted;” as such, the dismissal is a “strike” under

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Section 1915(g). See Johnson v. Fritz, No. 10-01673 EJD, 2011 WL 4830940, at *3 (N.D. Cal.
Order Granting Motion to Revoke Plaintiff’s In Forma Pauperis Status; Granting Motion to Dismiss
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Oct. 12, 2011); Hamilton, v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996) (“A § 1983 claim which

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falls under the rule in Heck is legally frivolous.”); Schafer v. Moore, 46 F.3d 43, 45 (8th Cir.

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1995) (“[I]n light of Heck, the complaint was properly dismissed for failure to state a claim.”).

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Lastly, plaintiff makes no assertion, and the allegations in the complaint do not

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demonstrate, that he is under “imminent danger of serious physical injury” within the meaning of

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Section 1915(g).

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CONCLUSION

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Accordingly, defendants’ motion to revoke plaintiff’s IFP status is GRANTED.

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Plaintiff’s IFP status is REVOKED. Defendants’ motion to dismiss is GRANTED. This action

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is DISMISSED without prejudice to re-filing if plaintiff pays the filing fee.

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The Clerk shall terminate all pending motions and close the file.

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IT IS SO ORDERED.

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DATED:
RONALD M. WHYTE
United States District Judge

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Order Granting Motion to Revoke Plaintiff’s In Forma Pauperis Status; Granting Motion to Dismiss
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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

SONNY RAY HARDAWAY,

Case Number: CV12-05459 RMW

Plaintiff,

CERTIFICATE OF SERVICE

v.
M. CHAVEZ-EPPERSON et al,
Defendant.

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District
Court, Northern District of California.
That on February 3, 2014, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

Sonny Ray Hardaway P-45579
Kern Valley State Prison
PO Box 5102
134-101
Delano, CA 93216
Dated: February 3, 2014
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk