O'NEAL v. Price

531 F.3d 1146, 2008 U.S. App. LEXIS 14890, 2008 WL 2718868
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 14, 2008
Docket06-15591
StatusPublished
Cited by562 cases

This text of 531 F.3d 1146 (O'NEAL v. Price) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'NEAL v. Price, 531 F.3d 1146, 2008 U.S. App. LEXIS 14890, 2008 WL 2718868 (9th Cir. 2008).

Opinions

Opinion by Judge IKUTA; Partial Concurrence and Partial Dissent by Judge THOMAS

IKUTA, Circuit Judge:

The Prison Litigation Reform Act of 1995 (“PLRA”), 110 Stat. 1321-71, precludes a prisoner from proceeding in forma pauperis if on three or more prior occasions the prisoner incurred a “strike,” that is, had brought an action that was dismissed because it was frivolous, malicious, or failed to state a claim. See 28 U.S.C. § 1915(g)1. In this appeal, Louis O’Neal [1148]*1148challenges the district court’s determination that he incurred three strikes. Because we agree that the three prior actions identified by the district court constituted strikes for purposes of 28 U.S.C. § 1915(g), we affirm.

I

On October 15, 2002, Louis O’Neal, a prisoner incarcerated in Folsom State Prison, filed a complaint in federal district court alleging that he had suffered injuries resulting from punitive confinement and inadequate medical care, and that his transfer to Ironwood State Prison had been delayed due to a breach of the duty of care on the part of J. Price, a counselor at the prison. In his motion to dismiss, Price asserted that O’Neal had struck out under § 1915(g). Price attached district court records for three past actions filed in the Central District of California in which O’Neal was the plaintiff: O’Neal v. Schelage, No. 94-4594 (C.D.Cal.) (“Schelage”); O’Neal v. Cal. State Prison, No. 00-8418 (C.D.Cal.) (“CSP”); and O’Neal v. Parriott, No. 99-8370 (C.D.Cal.) (“Parriott”). The United States District Court for the Eastern District of California granted Price’s motion to dismiss. We vacated the judgment of the district court and remanded with instructions to reconsider the matter in light of Andrews v. King, 398 F.3d 1113 (9th Cir.2005).

On remand, the district court again dismissed O’Neal’s claim without prejudice on the ground that O’Neal had struck out under 28 U.S.C. § 1915(g). This determination was supported by the following information. For Schelage, the record included a district court order denying O’Neal leave to proceed in forma pauperis for five reasons: 1) “No federal jurisdiction”; 2) “Fails to allege compliance with[Federal Tort Claim Act] and/or name proper defendant”; 3) “Sovereign Immunity as to United States and/or federal agency as to [Social Security Administration]”; 4) “The SSA/USA has not consented to suit for damages”; and 5) “No ground of error stated for review under 42 U.S.C. § 405(g); case belongs in E.D. Cal.; none of the parties reside in CDC and none of the claims arose here.” The record also contained a docket sheet, which included the entry:

ORDER DENYING lv to file action w/o prepayment of fees by Judge Manuel L. Real terminating case (am) [Entry date 07/11/94]

For CSP, the record included a district court order denying O’Neal leave to proceed in forma pauperis. The order stated: “IT IS RECOMMENDED that the application of prisoner plaintiff to file the action without prepayment of the full filing fee be DENIED for the following reason(s): Failure to State a Claim,” and continued:

A state prisoner has no cause of action under 42 U.S.C. § 1983 for an unauthorized deprivation of property, either intentional or negligent, by a state employee if a meaningful state post-deprivation remedy for the loss is available. Hudson v. Palmer, 468 U.S. 517, 533, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). California law provides an adequate post-deprivation remedy for any property deprivations. Barnett v. Centoni, 31 F.3d 813, 816-817 (9th Cir.1994).

The record also contained a docket sheet, which included the entries:

ORDER by Judge Terry J. Hatter denying motion to proceed without prepayment of full filing fee [1-1] Recommended by Magistrate Judge Ralph Zarefsky (Case terminated. MD JS-6) ENT 8/24/00 (pc) [Entry date 08/24/00] RETURNED lodged complaint and copy of Order to plaintiff Louis Butler O’Neal (pc) [Entry date 08/24/00]

For Parriott, the record included a one-page district court order adopting the magistrate judge’s report and dismissing [1149]*1149O’Neal’s claim with prejudice. The magistrate judge had recommended that the matter be dismissed, stating:

Plaintiff has failed to exhaust administrative remedies as required. If this were the only apparent shortcoming, then the undersigned would likely recommend dismissing this action without prejudice to Plaintiffs filing another action after exhausting such remedies. However, Plaintiff has also failed, in four attempts, to state a substantive claim for the alleged deprivation of his medicine in 1999. Although a pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment, see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987), under the circumstances, Plaintiff should not be given a fifth chance to cure the deficiencies. McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir.1996) (affirming dismissal with prejudice of civil rights plaintiffs Fourth Amended Complaint for repeated failures to correct noted pleading shortcomings). Therefore, the Complaint should be dismissed without leave to amend.

O’Neal sought to appeal. Pursuant to 28 U.S.C. § 1915(a)(3), the district court certified in writing that O’Neal’s appeal was not taken in good faith.2 On July 19, 2006, we granted O’Neal leave to proceed in forma pauperis, with the condition that he must eventually pay the full amount of the filing and docketing fees for this appeal.

On appeal, O’Neal claims that Schelage and CSP did not constitute strikes under 28 U.S.C. § 1915(g) because the relevant district courts had disposed of the actions by denying O’Neal’s applications to proceed without prepayment of the full filing fee. Second, O’Neal claims that Parriott did not constitute a strike because the district court considering that action had not dismissed it for one of the reasons enumerated in § 1915(g).

II

Before reaching O’Neal’s arguments, we must first determine whether we have jurisdiction to consider O’Neal’s appeal given the district court’s certification that the appeal was not taken in good faith. 28 U.S.C. § 1915

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531 F.3d 1146, 2008 U.S. App. LEXIS 14890, 2008 WL 2718868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oneal-v-price-ca9-2008.