1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUNIGAN, No. 2:19-cv-2501 WBS AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDCR, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. On December 20, 2019, the undersigned filed findings and recommendations that 19 recommended plaintiff’s motion to proceed in forma pauperis be denied on the ground that 20 plaintiff had accrued three strikes under 28 U.S.C. § 1915(g). ECF No. 5. Plaintiff has objected 21 to the findings and recommendations on the ground that one of the cases identified, Dunigan v. 22 California Department of Corrections, E.D. Cal. No. 2:01-cv-1591 WBS JFM, is not a strike 23 because he was not incarcerated at the time he filed the complaint in that case. ECF No. 7 at 1-2. 24 He does not raise any objections related to the other two cases identified as strikes or to the 25 finding that he failed to allege facts demonstrating imminent danger of serious physical injury. 26 Assuming that plaintiff was not in custody at the time he filed the complaint in Case No. 27 2:01-cv-1591 WBS JFM, he is correct that that case cannot count as a strike. The December 20, 28 2019 findings and recommendations will therefore be withdrawn. However, the court has 1 identified another case, Dungan v. United States, E.D. Cal. No. 2:10-cv-2965 MCE EFB, which 2 was clearly initiated while plaintiff was incarcerated and was dismissed on grounds that constitute 3 a strike. Accordingly, the undersigned will once again recommend that plaintiff’s motion to 4 proceed in forma pauperis be denied. 5 Also pending before the court is plaintiff’s motion for miscellaneous relief styled as a 6 “sovereign motion invoking global street kraft upon stayed release and criminal enforcements.” 7 ECF No. 6. The motion states that it “arrises [sic] out of a dual intentionally false and erroneous 8 Sacto., County convictions . . . both of which are ‘freestanding actual innocence claims.’” Id. at 9 1. The motion appears to be a mishmash of multiple motions and documents covering a variety 10 of issues and is comprised predominately of citations to various statues without any cognizable 11 request for relief. The motion will therefore be denied. 12 I. Three Strikes Analysis 13 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF No. 3. 14 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 15 authorize the commencement and prosecution of any suit without prepayment of fees by a person 16 who submits an affidavit indicating that the person is unable to pay such fees. However, 17 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 18 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 19 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 20 unless the prisoner is under imminent danger of serious physical injury. 21 22 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 23 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 24 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 25 169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in 26 forma pauperis] status only when, after careful evaluation of the order dismissing an action, and 27 other relevant information, the district court determines that the action was dismissed because it 28 was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th 1 Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds 2 that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ 3 such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such 4 dismissal as denial of the prisoner’s application to file the action without prepayment of the full 5 filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). 6 Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint 7 on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff 8 then fails to file an amended complaint” regardless of whether the case was dismissed with or 9 without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 10 Inspection of other cases filed by plaintiff in this court has led to the identification of at 11 least three cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the 12 following lawsuits filed by plaintiff:1 13 1. Dunigan v. United States, E.D. Cal. No. 2:10-cv-2965 MCE EFB (first amended 14 complaint dismissed on May 18, 2012, without leave to amend for failure to comply with 15 Federal Rule of Civil Procedure 8 where findings and recommendations included explicit 16 finding that complaint failed to state a claim, appeared to be frivolous, and “lacks merit 17 and ‘cannot possibly be saved’”);2 18 2. Dunigan v. United States, E.D. Cal. No. 2:10-cv-2992 JAM KJN (case dismissed as 19 frivolous on May 2, 2011); 20 //// 21 //// 22
23 1 The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex 24 rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 25 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 26 accuracy cannot reasonably be questioned). 2 Dismissal under Rule 8 can count as a strike where the underlying rationale for the Rule 8 27 dismissal is one of the three categories outlined in § 1915(g). Knapp v. Hogan, 738 F.3d 1106, 1109-10 (9th Cir. 2013). 28 1 3. Dunigan v. United States, E.D. Cal. No. 2:12-cv-3048 TLN CKD (complaint dismissed 2 with leave to amend for failure to state a claim, and case dismissed on September 16, 3 2013, for failure to file an amended complaint). 4 All of the preceding cases were dismissed well in advance of the December 8, 2019 filing3 5 of the instant action and none of the strikes have been overturned.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN DUNIGAN, No. 2:19-cv-2501 WBS AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CDCR, et al., 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. On December 20, 2019, the undersigned filed findings and recommendations that 19 recommended plaintiff’s motion to proceed in forma pauperis be denied on the ground that 20 plaintiff had accrued three strikes under 28 U.S.C. § 1915(g). ECF No. 5. Plaintiff has objected 21 to the findings and recommendations on the ground that one of the cases identified, Dunigan v. 22 California Department of Corrections, E.D. Cal. No. 2:01-cv-1591 WBS JFM, is not a strike 23 because he was not incarcerated at the time he filed the complaint in that case. ECF No. 7 at 1-2. 24 He does not raise any objections related to the other two cases identified as strikes or to the 25 finding that he failed to allege facts demonstrating imminent danger of serious physical injury. 26 Assuming that plaintiff was not in custody at the time he filed the complaint in Case No. 27 2:01-cv-1591 WBS JFM, he is correct that that case cannot count as a strike. The December 20, 28 2019 findings and recommendations will therefore be withdrawn. However, the court has 1 identified another case, Dungan v. United States, E.D. Cal. No. 2:10-cv-2965 MCE EFB, which 2 was clearly initiated while plaintiff was incarcerated and was dismissed on grounds that constitute 3 a strike. Accordingly, the undersigned will once again recommend that plaintiff’s motion to 4 proceed in forma pauperis be denied. 5 Also pending before the court is plaintiff’s motion for miscellaneous relief styled as a 6 “sovereign motion invoking global street kraft upon stayed release and criminal enforcements.” 7 ECF No. 6. The motion states that it “arrises [sic] out of a dual intentionally false and erroneous 8 Sacto., County convictions . . . both of which are ‘freestanding actual innocence claims.’” Id. at 9 1. The motion appears to be a mishmash of multiple motions and documents covering a variety 10 of issues and is comprised predominately of citations to various statues without any cognizable 11 request for relief. The motion will therefore be denied. 12 I. Three Strikes Analysis 13 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF No. 3. 14 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 15 authorize the commencement and prosecution of any suit without prepayment of fees by a person 16 who submits an affidavit indicating that the person is unable to pay such fees. However, 17 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 18 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 19 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 20 unless the prisoner is under imminent danger of serious physical injury. 21 22 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 23 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 24 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 25 169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in 26 forma pauperis] status only when, after careful evaluation of the order dismissing an action, and 27 other relevant information, the district court determines that the action was dismissed because it 28 was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th 1 Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds 2 that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ 3 such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such 4 dismissal as denial of the prisoner’s application to file the action without prepayment of the full 5 filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). 6 Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint 7 on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff 8 then fails to file an amended complaint” regardless of whether the case was dismissed with or 9 without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 10 Inspection of other cases filed by plaintiff in this court has led to the identification of at 11 least three cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the 12 following lawsuits filed by plaintiff:1 13 1. Dunigan v. United States, E.D. Cal. No. 2:10-cv-2965 MCE EFB (first amended 14 complaint dismissed on May 18, 2012, without leave to amend for failure to comply with 15 Federal Rule of Civil Procedure 8 where findings and recommendations included explicit 16 finding that complaint failed to state a claim, appeared to be frivolous, and “lacks merit 17 and ‘cannot possibly be saved’”);2 18 2. Dunigan v. United States, E.D. Cal. No. 2:10-cv-2992 JAM KJN (case dismissed as 19 frivolous on May 2, 2011); 20 //// 21 //// 22
23 1 The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex 24 rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 25 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 26 accuracy cannot reasonably be questioned). 2 Dismissal under Rule 8 can count as a strike where the underlying rationale for the Rule 8 27 dismissal is one of the three categories outlined in § 1915(g). Knapp v. Hogan, 738 F.3d 1106, 1109-10 (9th Cir. 2013). 28 1 3. Dunigan v. United States, E.D. Cal. No. 2:12-cv-3048 TLN CKD (complaint dismissed 2 with leave to amend for failure to state a claim, and case dismissed on September 16, 3 2013, for failure to file an amended complaint). 4 All of the preceding cases were dismissed well in advance of the December 8, 2019 filing3 5 of the instant action and none of the strikes have been overturned. Therefore, this court finds that 6 plaintiff is precluded from proceeding in forma pauperis unless she is “under imminent danger of 7 serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must have 8 alleged facts that demonstrate that she was “under imminent danger of serious physical injury” at 9 the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 10 (“[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of 11 the ‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie, 239 F.3d 12 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); 13 Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 885 (5th 14 Cir. 1998). 15 The complaint names ninety-six defendants, including individuals and both private and 16 government entities, and makes allegations regarding plaintiff’s conviction, his ability to use the 17 administrative appeals process, interference with previous lawsuits, unspecified retaliation, and 18 various conspiracies. However, none of the allegations demonstrate an imminent risk of serious 19 physical injury at the time of filing, and the undersigned will therefore recommend that plaintiff 20 be required to pay the filing fee in full or have the complaint dismissed. 21 II. Plain Language Summary of this Order for a Pro Se Litigant 22 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 23 status unless you show the court that you were in imminent danger of serious physical injury at 24 the time you filed the complaint. You have not shown that you were in imminent danger of 25 serious physical injury and so it is being recommended that your motion to proceed in forma 26 pauperis be denied. 27 3 Since plaintiff is a prisoner proceeding pro se, she is afforded the benefit of the prison mailbox 28 rule. Houston v. Lack, 487 U.S. 266, 276 (1988). 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for miscellaneous relief, ECF No. 6, is denied. 3 2. The December 20, 2019 findings and recommendations, ECF No. 5, are withdrawn. 4 IT IS FURTHER RECOMMENDED that plaintiff’s motion to proceed in forma pauperis, 5 || ECF No. 3, be denied and plaintiff be ordered to pay the entire $400.00 in required fees within 6 || thirty days or face dismissal of the case. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 9 || after being served with these findings and recommendations, plaintiff may file written objections 10 | with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 11 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 12 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 13 | (9th Cir. 1991). 14 | DATED: January 8, 2020 ~ 19 Hhthren— Char ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28