1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:19-cv-00784-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND 14 STATE OF CALIFORNIA, et al., GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 8, 10) 16
17 18 Plaintiff Allen Hammler, a state prisoner, proceeds pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint (Doc. No. 1) 20 and an application to proceed in forma pauperis (Doc. No. 8). The matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On August 13, 2019, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff’s application to proceed in forma pauperis be denied and that he be 24 required to pay the $400.00 filing fee in full to proceed with this action because: (1) he is subject 25 to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations in plaintiff’s complaint 26 to do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 27 No. 10 at 1–2.) Those findings and recommendations were served on plaintiff and contained 28 ///// 1 notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2 3.) On August 23, 2019, plaintiff filed objections (Doc. No. 11.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 4 conducted a de novo review of the case. Having carefully reviewed the entire file, including 5 plaintiff’s objections, the undersigned declines to adopt the findings and recommendations. 6 Specifically, the undersigned concludes that two of the three dismissal orders relied upon in the 7 findings and recommendations as strikes under 28 U.S.C. § 1915(g) are not strike dismissals 8 under the statute. Each of the dismissal orders relied upon in the findings and recommendations 9 is addressed in turn below. 10 The findings and recommendations rely upon the dismissal order in Hammler v. Hough, 11 3:18-cv-01319-LAB-BLM (S.D. Cal. May 24, 2019) as a prior strike. A review of the docket in 12 that case establishes that the action was dismissed by a district court “for failure to state a 13 claim . . . and as frivolous.” (Hough, Doc. No. 12 at 16.) Accordingly, the dismissal of that case 14 counts as a strike against plaintiff under 28 U.S.C. § 1915(g). 15 Next, the findings and recommendations rely upon the dismissal in Hammler v. Hudson, 16 2:16-cv-01153-JAM-EFB (E.D. Cal. May 17, 2019) as a prior strike. A review of the docket in 17 that case establishes that the action was dismissed after the district court “adopted in full” the 18 magistrate judge’s recommendation that plaintiff’s complaint be dismissed for “failure to exhaust 19 administrative remedies.” (Hudson, Doc. No. 56 at 2.) In Hudson, the assigned magistrate judge 20 screened plaintiff’s complaint and found that “[i]t [wa]s clear from the face of the complaint and 21 [its] attachments that plaintiff ha[d] failed to exhaust his administrative remedies” and thereafter 22 recommended dismissing the action “for failure to exhaust administrative remedies.” (Hudson, 23 Doc. No. 50 at 4, 10); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) 24 (Holding that a dismissal for failure to exhaust administrative remedies counts as a strike 25 dismissal under § 1915(g) if the failure to exhaust is clear from the face of the complaint); Kelly 26 v. Elit, No. 1:18-cv-00019-DAD-SAB, 2018 WL 1905667, at *2 (E.D. Cal. Apr. 23, 2018) (“[I]f a 27 case is dismissed because the failure to exhaust was clear on the face of the complaint, and no 28 ///// 1 outside evidence was considered in reaching that determination, the dismissal would count as a 2 strike.”). 3 Plaintiff, however, argues that the Hudson dismissal order cannot count as a strike against 4 him because it was issued on May 17, 2019 and the present action was filed on April 17, 2019, 5 which is the date that plaintiff contends that he conveyed his complaint in this action to prison 6 officials. (Doc. No. 11 at 2); see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (the 7 mailbox rule—which provides that a prisoner’s filing is considered “filed” at the time he delivers 8 it to prison authorities for forwarding to the Clerk of the Court—“applies to § 1983 suits filed by 9 pro se prisoners”). Plaintiff therefore argues that the dismissal in Hudson does not count as a 10 strike against him because the dismissal in that case was not issued prior to the filing of his 11 complaint in this action. See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil 12 action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 13 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 14 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 15 malicious, or fails to state a claim upon which relief may be granted . . ..”) (emphasis added); see 16 also Ramey v. Franco, No. 2:16-cv-2107-JAM-CKD-P, 2018 WL 784294, at *2 (E.D. Cal. Feb. 17 8, 2018) (“Once a plaintiff has accrued three strikes, he is precluded from proceeding IFP . . ..”) 18 (emphasis added). Plaintiff’s objection is well taken. Although the docket in this case lists June 19 4, 2019, as the filing date of plaintiff’s complaint, it bears a date stamp reflecting that it was 20 actually received by the Clerk of the Court on April 22, 2019. (See Doc. No. 1 at 1.) The Hudson 21 dismissal order was issued almost three weeks later, in May of 2019. Accordingly, the court 22 concludes that the Hudson dismissal—despite constituting a strike dismissal against plaintiff for 23 any action he files after May 17, 2019—does not count as a prior strike dismissal against plaintiff 24 in this action, which was filed before the May 17, 2019 dismissal. 25 Finally, the last dismissal order relied upon as a strike in the pending findings and 26 recommendations—the dismissal in Hammler v. Director of CDCR, 1:17-cv-00097-NJV (N.D. 27 Cal. Apr. 27, 2017) (“CDCR”)—also does not constitute a strike against plaintiff under 28 U.S.C. 28 § 1915(g). In CDCR, plaintiff consented to the magistrate judge’s jurisdiction, the magistrate 1 judge screened plaintiff’s complaint, and the magistrate judge thereafter dismissed the complaint 2 due to plaintiff’s failure to file an amended complaint or otherwise communicate with the court 3 after the issuance of its screening order. (CDCR, Doc. No. 10 at 1.) Notably, the screening order 4 in CDCR found that “[i]t [wa]s . . . not clear at this early stage if plaintiff ha[d] exhausted his 5 claim or if he ha[d] even presented a cognizable claim.” (CDCR, Doc. No.
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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 ALLEN HAMMLER, No. 1:19-cv-00784-DAD-BAM (PC) 12 Plaintiff, 13 v. ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND 14 STATE OF CALIFORNIA, et al., GRANTING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 8, 10) 16
17 18 Plaintiff Allen Hammler, a state prisoner, proceeds pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint (Doc. No. 1) 20 and an application to proceed in forma pauperis (Doc. No. 8). The matter was referred to a 21 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On August 13, 2019, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff’s application to proceed in forma pauperis be denied and that he be 24 required to pay the $400.00 filing fee in full to proceed with this action because: (1) he is subject 25 to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations in plaintiff’s complaint 26 to do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 27 No. 10 at 1–2.) Those findings and recommendations were served on plaintiff and contained 28 ///// 1 notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2 3.) On August 23, 2019, plaintiff filed objections (Doc. No. 11.) 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 4 conducted a de novo review of the case. Having carefully reviewed the entire file, including 5 plaintiff’s objections, the undersigned declines to adopt the findings and recommendations. 6 Specifically, the undersigned concludes that two of the three dismissal orders relied upon in the 7 findings and recommendations as strikes under 28 U.S.C. § 1915(g) are not strike dismissals 8 under the statute. Each of the dismissal orders relied upon in the findings and recommendations 9 is addressed in turn below. 10 The findings and recommendations rely upon the dismissal order in Hammler v. Hough, 11 3:18-cv-01319-LAB-BLM (S.D. Cal. May 24, 2019) as a prior strike. A review of the docket in 12 that case establishes that the action was dismissed by a district court “for failure to state a 13 claim . . . and as frivolous.” (Hough, Doc. No. 12 at 16.) Accordingly, the dismissal of that case 14 counts as a strike against plaintiff under 28 U.S.C. § 1915(g). 15 Next, the findings and recommendations rely upon the dismissal in Hammler v. Hudson, 16 2:16-cv-01153-JAM-EFB (E.D. Cal. May 17, 2019) as a prior strike. A review of the docket in 17 that case establishes that the action was dismissed after the district court “adopted in full” the 18 magistrate judge’s recommendation that plaintiff’s complaint be dismissed for “failure to exhaust 19 administrative remedies.” (Hudson, Doc. No. 56 at 2.) In Hudson, the assigned magistrate judge 20 screened plaintiff’s complaint and found that “[i]t [wa]s clear from the face of the complaint and 21 [its] attachments that plaintiff ha[d] failed to exhaust his administrative remedies” and thereafter 22 recommended dismissing the action “for failure to exhaust administrative remedies.” (Hudson, 23 Doc. No. 50 at 4, 10); see also El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) 24 (Holding that a dismissal for failure to exhaust administrative remedies counts as a strike 25 dismissal under § 1915(g) if the failure to exhaust is clear from the face of the complaint); Kelly 26 v. Elit, No. 1:18-cv-00019-DAD-SAB, 2018 WL 1905667, at *2 (E.D. Cal. Apr. 23, 2018) (“[I]f a 27 case is dismissed because the failure to exhaust was clear on the face of the complaint, and no 28 ///// 1 outside evidence was considered in reaching that determination, the dismissal would count as a 2 strike.”). 3 Plaintiff, however, argues that the Hudson dismissal order cannot count as a strike against 4 him because it was issued on May 17, 2019 and the present action was filed on April 17, 2019, 5 which is the date that plaintiff contends that he conveyed his complaint in this action to prison 6 officials. (Doc. No. 11 at 2); see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (the 7 mailbox rule—which provides that a prisoner’s filing is considered “filed” at the time he delivers 8 it to prison authorities for forwarding to the Clerk of the Court—“applies to § 1983 suits filed by 9 pro se prisoners”). Plaintiff therefore argues that the dismissal in Hudson does not count as a 10 strike against him because the dismissal in that case was not issued prior to the filing of his 11 complaint in this action. See 28 U.S.C. § 1915(g) (“In no event shall a prisoner bring a civil 12 action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 13 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 14 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 15 malicious, or fails to state a claim upon which relief may be granted . . ..”) (emphasis added); see 16 also Ramey v. Franco, No. 2:16-cv-2107-JAM-CKD-P, 2018 WL 784294, at *2 (E.D. Cal. Feb. 17 8, 2018) (“Once a plaintiff has accrued three strikes, he is precluded from proceeding IFP . . ..”) 18 (emphasis added). Plaintiff’s objection is well taken. Although the docket in this case lists June 19 4, 2019, as the filing date of plaintiff’s complaint, it bears a date stamp reflecting that it was 20 actually received by the Clerk of the Court on April 22, 2019. (See Doc. No. 1 at 1.) The Hudson 21 dismissal order was issued almost three weeks later, in May of 2019. Accordingly, the court 22 concludes that the Hudson dismissal—despite constituting a strike dismissal against plaintiff for 23 any action he files after May 17, 2019—does not count as a prior strike dismissal against plaintiff 24 in this action, which was filed before the May 17, 2019 dismissal. 25 Finally, the last dismissal order relied upon as a strike in the pending findings and 26 recommendations—the dismissal in Hammler v. Director of CDCR, 1:17-cv-00097-NJV (N.D. 27 Cal. Apr. 27, 2017) (“CDCR”)—also does not constitute a strike against plaintiff under 28 U.S.C. 28 § 1915(g). In CDCR, plaintiff consented to the magistrate judge’s jurisdiction, the magistrate 1 judge screened plaintiff’s complaint, and the magistrate judge thereafter dismissed the complaint 2 due to plaintiff’s failure to file an amended complaint or otherwise communicate with the court 3 after the issuance of its screening order. (CDCR, Doc. No. 10 at 1.) Notably, the screening order 4 in CDCR found that “[i]t [wa]s . . . not clear at this early stage if plaintiff ha[d] exhausted his 5 claim or if he ha[d] even presented a cognizable claim.” (CDCR, Doc. No. 9 at 5.) Although the 6 findings and recommendations pending before the undersigned in the present case state that 7 CDCR was “dismissed . . . for failure to file an amended complaint following a screening order 8 dismissing [the] complaint for failure to state a claim” (Doc. No. 10 at 2 n.1), the undersigned 9 notes that: (1), in CDCR, the dismissal order noted that plaintiff did not file an amended 10 complaint and thus dismissed “[t]h[e] case . . . for the reasons set forth in the prior [screening 11 order]” (CDCR, Doc. No. 10 at 1); and (2) the screening order did not dismiss CDCR for failure 12 to state a claim but rather due to plaintiff’s failure to allege that he exhausted his administrative 13 remedies for his constitutional claims prior to asserting them in his federal suit (CDCR, Doc. No. 14 9 at 4). Indeed, the screening order in CDCR explicitly noted that it was not clear to the 15 magistrate judge at the screening stage whether plaintiff’s complaint presented a cognizable 16 claim. (Id. at 5.) Moreover, as indicated above, a dismissal for failure to exhaust administrative 17 remedies prior to filing suit counts as a strike only if under § 1915(g) only if the failure is obvious 18 from the allegations of the complaint, which does not appear to have been the case in CDCR. 19 Accordingly, the court concludes that the dismissal of CDCR also does not count as a strike 20 dismissal against plaintiff. 21 The findings and recommendations pending before the undersigned in the present case 22 rely on the decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), for the proposition that 23 when courts “review a dismissal to determine whether it counts as a strike, the style of the 24 dismissal or the procedural posture is immaterial. Instead, the central question is whether the 25 dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” (Doc. No. 7 at 26 ///// 27 ///// 28 ///// 1 | 2n.1) (quoting Harris, 863 F.3d at 1142).' This analysis, however, does not change the 2 | undersigned’s conclusion here that the dismissal in CDCR does not count as a strike dismissal 3 | against plaintiff. As discussed, the magistrate judge in CDCR acknowledged that it was not 4 | possible at the screening stage to determine whether plaintiff stated a cognizable claim due to his 5 | failure to allege that he had exhausted his administrative remedies. Such a dismissal in no way 6 | rings the PLRA bells of frivolous, malicious, or failure to state a claim. Therefore, neither the 7 | decision in Harris nor the one in El-Shaddai compels a finding that the dismissal of CDCR counts 8 | asa strike dismissal against plaintiff. 9 For the reasons set forth above: 10 1. The undersigned declines to adopt the August 13, 2019 findings and 11 recommendations (Doc. No. 10); 12 2. Plaintiffs application to proceed in forma pauperis (Doc. No. 8) is granted; and 13 3. The matter is referred back to the assigned magistrate for proceedings consistent 14 with this order. 15 | IT IS SO ORDERED. □ Dated: _ October 21, 2019 See | ae 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 | | This same principle was adopted by the court in El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). Nonetheless, the 24 | Ninth Circuit has also held that “prior dismissals . . . qualify as strikes only if, after reviewing the orders dismissing those actions and other relevant information, the district court determined that 25 they had been dismissed because they were frivolous, malicious or failed to state a claim.” 26 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (emphasis added). Moreover, a PLRA strike is only assessed “when the ‘case as a whole’ is dismissed for a qualifying reason under the 27 | Act.” Washington v. Los Angeles Cty. Sheriff's Dept., 833 F.3d 1048, 1057 (9th Cir. 2016) (quoting Andrews v. Cervantes, 493 F.3d 1047 (9th Cir. 2007)); see also Harris v. Harris, 935 28 | F.3d 670, 674-75 (9th Cir. 2019).