1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MAURICE MILES, SR., No. 2:19-cv-01881-MCE-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DANIEL GARLAND, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this federal 18 civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is 19 defendants’ motion to revoke plaintiff’s in forma pauperis status on the ground that the dismissals 20 of at least three prior actions filed by plaintiff qualify as “strikes” against him pursuant to 28 21 U.S.C. § 1915(g). ECF No. 61. Plaintiff was sua sponte granted an extension of time to file an 22 opposition to the motion, but failed to do so. ECF No. 65. The time to file an opposition has 23 expired. Therefore, the matter is deemed submitted. For the reasons outlined below, the court 24 recommends denying defendants’ motion to revoke plaintiff’s IFP status. 25 I. Factual and Procedural Background 26 Plaintiff commenced this action by filing a complaint on September 11, 2019.1 At that 27 1 The constructive filing date is determined by using the prison mailbox rule. See Houston v. 28 Lack, 487 U.S. 266 (1988). 1 time, plaintiff was incarcerated at the Sacramento County Main Jail. ECF No. 1 at 1. This court 2 granted plaintiff’s motion to proceed in forma pauperis on April 1, 2020. See ECF Nos. 21, 22. 3 On July 13, 2021, defendants filed a motion to revoke plaintiff’s IFP status based on five 4 prior actions or appeals that defendants assert were dismissed as frivolous, malicious, or failed to 5 state a claim upon which relief could be granted. ECF No. 61; see also 28 U.S.C. § 1915(g). 6 Pursuant to Rule 201 of the Federal Rules of Evidence, defendants request that the court take 7 judicial notice of the court records from plaintiff's prior cases that are attached as exhibits. ECF 8 No. 61-2. They further contend that plaintiff was not under imminent danger of serious physical 9 injury at the time that he filed the complaint to warrant continuing plaintiff’s IFP status under 28 10 U.S.C. § 1915(g). ECF No. 61-1 at 7-8. As part of the requested relief, defendants ask the court 11 to stay the filing of their responsive pleading until the pending motion is adjudicated. 12 II. Legal Standards 13 28 U.S.C. § 1915(g) sets forth what is known as the “three strikes” rule. Under this rule, a 14 prisoner who has previously brought three or more lawsuits in a court of the United States that 15 were dismissed on the grounds that they were “frivolous, malicious, or fail to state a claim upon 16 which relief may be granted” may not proceed in forma pauperis in the current litigation unless 17 that prisoner “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). In 18 defining “frivolous,” the Ninth Circuit Court of Appeal has concluded that a claim is frivolous 19 when it lacks any “basis in law or fact” or is “of little weight or importance.” Andrews v. King, 20 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted). A claim is “malicious” when it is “filed 21 with the intention or desire to harm another.” Id. Failing to state a claim has been interpreted to 22 be equivalent to a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 23 See Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (citations 24 omitted). Furthermore, a district court is not required to announce in an order that its dismissal 25 constitutes a strike under Section 1915(g) for that dismissal to later count as a strike. See 26 Andrews, 398 F.3d at 1119 n. 8. 27 When reviewing whether a prior dismissal counts as a strike, the court “should look to the 28 substance of the dismissed lawsuit, and not to how the district court labelled or styled the 1 dismissal.” Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019) (internal quotations marks and 2 citation omitted). To count as a strike for purposes of § 1915(g), a case must be dismissed in its 3 entirety as frivolous, malicious or for failure to state a claim. Id. at 674. 4 In moving to revoke the plaintiff's in forma pauperis status, the defendant bears the initial 5 burden of producing evidence showing that at least three of plaintiff's previous actions have been 6 dismissed by a federal court for one or more of the above reasons. Andrews v. King, 398 F.3d at 7 1121. If the defendant meets this showing, then the burden shifts to the plaintiff to prove that the 8 dismissed actions do not qualify as “strikes” within the meaning of 28 U.S.C. § 1915(g). 9 Andrews, 398 F.3d at 1121. A prisoner’s IFP status should be revoked pursuant to 28 U.S.C. 10 § 1915(g) “only when, after careful evaluation of the order dismissing [each] action, and other 11 relevant information, the district court determines that [each] action was dismissed because it was 12 frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 13 2005). 14 III. Analysis 15 A. Prior Civil Actions or Appeals2 16 1. Miles v. Cox et al., Case No. 1:14-cv-01683 (E.D. Cal.) 17 In this civil action, plaintiff sued two correctional counselors and the warden at Kern 18 Valley State Prison “for damages and the expungement of a false record from his prison central 19 file” that was originally issued in 2001. See ECF No. 61-2 at 11. On April 25, 2015, the 20 magistrate judge assigned this case dismissed it “with prejudice for failure to state a claim under 21 section 1983. This dismissal is subject to the ‘three-strikes’ provision set forth in 28 U.S.C. § 22 1915(g).” ECF No. 61-2 at 13 (citation omitted). 23 This case was dismissed by a magistrate judge for failing to state a claim upon which 24 2 The court grants defendants’ request for judicial notice of these matters of public record, 25 including publicly accessible court dockets and documents available through the Public Access to Court Electronic Records (“PACER”) system. See United States v. Wilson, 631 F.2d 118, 119 26 (9th Cir. 1980); Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir.
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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 MAURICE MILES, SR., No. 2:19-cv-01881-MCE-CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 DANIEL GARLAND, et al., 15 Defendants. 16 17 Plaintiff is a former state prisoner proceeding pro se and in forma pauperis in this federal 18 civil rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is 19 defendants’ motion to revoke plaintiff’s in forma pauperis status on the ground that the dismissals 20 of at least three prior actions filed by plaintiff qualify as “strikes” against him pursuant to 28 21 U.S.C. § 1915(g). ECF No. 61. Plaintiff was sua sponte granted an extension of time to file an 22 opposition to the motion, but failed to do so. ECF No. 65. The time to file an opposition has 23 expired. Therefore, the matter is deemed submitted. For the reasons outlined below, the court 24 recommends denying defendants’ motion to revoke plaintiff’s IFP status. 25 I. Factual and Procedural Background 26 Plaintiff commenced this action by filing a complaint on September 11, 2019.1 At that 27 1 The constructive filing date is determined by using the prison mailbox rule. See Houston v. 28 Lack, 487 U.S. 266 (1988). 1 time, plaintiff was incarcerated at the Sacramento County Main Jail. ECF No. 1 at 1. This court 2 granted plaintiff’s motion to proceed in forma pauperis on April 1, 2020. See ECF Nos. 21, 22. 3 On July 13, 2021, defendants filed a motion to revoke plaintiff’s IFP status based on five 4 prior actions or appeals that defendants assert were dismissed as frivolous, malicious, or failed to 5 state a claim upon which relief could be granted. ECF No. 61; see also 28 U.S.C. § 1915(g). 6 Pursuant to Rule 201 of the Federal Rules of Evidence, defendants request that the court take 7 judicial notice of the court records from plaintiff's prior cases that are attached as exhibits. ECF 8 No. 61-2. They further contend that plaintiff was not under imminent danger of serious physical 9 injury at the time that he filed the complaint to warrant continuing plaintiff’s IFP status under 28 10 U.S.C. § 1915(g). ECF No. 61-1 at 7-8. As part of the requested relief, defendants ask the court 11 to stay the filing of their responsive pleading until the pending motion is adjudicated. 12 II. Legal Standards 13 28 U.S.C. § 1915(g) sets forth what is known as the “three strikes” rule. Under this rule, a 14 prisoner who has previously brought three or more lawsuits in a court of the United States that 15 were dismissed on the grounds that they were “frivolous, malicious, or fail to state a claim upon 16 which relief may be granted” may not proceed in forma pauperis in the current litigation unless 17 that prisoner “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). In 18 defining “frivolous,” the Ninth Circuit Court of Appeal has concluded that a claim is frivolous 19 when it lacks any “basis in law or fact” or is “of little weight or importance.” Andrews v. King, 20 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted). A claim is “malicious” when it is “filed 21 with the intention or desire to harm another.” Id. Failing to state a claim has been interpreted to 22 be equivalent to a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 23 See Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (citations 24 omitted). Furthermore, a district court is not required to announce in an order that its dismissal 25 constitutes a strike under Section 1915(g) for that dismissal to later count as a strike. See 26 Andrews, 398 F.3d at 1119 n. 8. 27 When reviewing whether a prior dismissal counts as a strike, the court “should look to the 28 substance of the dismissed lawsuit, and not to how the district court labelled or styled the 1 dismissal.” Harris v. Harris, 935 F.3d 670, 673 (9th Cir. 2019) (internal quotations marks and 2 citation omitted). To count as a strike for purposes of § 1915(g), a case must be dismissed in its 3 entirety as frivolous, malicious or for failure to state a claim. Id. at 674. 4 In moving to revoke the plaintiff's in forma pauperis status, the defendant bears the initial 5 burden of producing evidence showing that at least three of plaintiff's previous actions have been 6 dismissed by a federal court for one or more of the above reasons. Andrews v. King, 398 F.3d at 7 1121. If the defendant meets this showing, then the burden shifts to the plaintiff to prove that the 8 dismissed actions do not qualify as “strikes” within the meaning of 28 U.S.C. § 1915(g). 9 Andrews, 398 F.3d at 1121. A prisoner’s IFP status should be revoked pursuant to 28 U.S.C. 10 § 1915(g) “only when, after careful evaluation of the order dismissing [each] action, and other 11 relevant information, the district court determines that [each] action was dismissed because it was 12 frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 13 2005). 14 III. Analysis 15 A. Prior Civil Actions or Appeals2 16 1. Miles v. Cox et al., Case No. 1:14-cv-01683 (E.D. Cal.) 17 In this civil action, plaintiff sued two correctional counselors and the warden at Kern 18 Valley State Prison “for damages and the expungement of a false record from his prison central 19 file” that was originally issued in 2001. See ECF No. 61-2 at 11. On April 25, 2015, the 20 magistrate judge assigned this case dismissed it “with prejudice for failure to state a claim under 21 section 1983. This dismissal is subject to the ‘three-strikes’ provision set forth in 28 U.S.C. § 22 1915(g).” ECF No. 61-2 at 13 (citation omitted). 23 This case was dismissed by a magistrate judge for failing to state a claim upon which 24 2 The court grants defendants’ request for judicial notice of these matters of public record, 25 including publicly accessible court dockets and documents available through the Public Access to Court Electronic Records (“PACER”) system. See United States v. Wilson, 631 F.2d 118, 119 26 (9th Cir. 1980); Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (stating that 27 “we 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[.]”) (internal quotation 28 omitted). 1 relief may be granted. However, only plaintiff had consented to proceed before the magistrate 2 judge and the case was dismissed before service of process on any defendant. See ECF No. 5 in 3 Case No. 1:14-cv-01683 (E.D. Cal.). The Ninth Circuit has recently held that, although there is 4 no longer a “dispute that a magistrate judge lacks the authority to dismiss a case unless all parties 5 have consented to proceed before the magistrate judge,” a prisoner plaintiff “cannot escape” the 6 28 U.S.C. § 1915(g) consequences of such a dismissal “through an untimely collateral attack.” 7 Hoffman v. Pulido, 928 F.3d 1147, 1149 (9th Cir. 2019) (citing Williams v. King, 875 F.3d 500, 8 504-05 (9th Cir. 2017)). Thus, even though this case was dismissed by a magistrate judge, its 9 dismissal still constitutes a strike under 28 U.S.C. § 1915(g). 10 2. Miles v. Cox, et al., Appeal No. 15-15960 (9th Cir.) 11 In this appeal from the district court’s dismissal with prejudice of his complaint, the Ninth 12 Circuit denied plaintiff’s motion to proceed IFP after concluding that the appeal was frivolous in 13 nature. See ECF No. 61-2 at 22-23. After plaintiff failed to pay the filing fees for the appeal, the 14 case was dismissed on August 28, 2015. See ECF No. 61-2 at 25. 15 In El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2013), the court of appeal 16 emphasized that “a denial of IFP status may be strike-worthy. But that does not mean that all 17 dismissals predicated on denials of IFP status are strikes; to constitute a strike, the denial of IFP 18 status must be based on one of the enumerated grounds in the statute.” In plaintiff’s appeal, the 19 Ninth Circuit specifically predicated its IFP denial on its finding that the appeal was frivolous. 20 ECF No. 61-2 at 22. Furthermore, an appeal may count as a strike pursuant to Section 1915(g) 21 when the appellate court denies a prisoner IFP status on appeal on grounds of frivolousness “even 22 though [the appellate court] did not dismiss the appeal until later when the [appellant] did not pay 23 the filing fee.” Richey v. Dahne, 807 F.3d 1202, 1208 (9th Cir. 2015). Defendants have met their 24 burden of establishing that Appeal Number 15-15960 counts as a strike. See Andrews I, 398 F.3d 25 at 1120. 26 3. Miles v. Kern Valley State Prison Employee Officials et al., Case No. 2:15-cv- 27 06101 (C.D. Cal.) 28 In this civil action, plaintiff incorrectly filled out his request to proceed without 1 prepayment of the filing fees.3 See ECF No. 61-2 at 31. As a result, the magistrate judge 2 recommended denying his in forma pauperis application because he “checked off all the boxes on 3 the Declaration form, indicating that he is both able and not able to pay the costs of proceeding 4 with his action.” ECF No. 61-2 at 31. Notably, in making this recommendation, the magistrate 5 judge did not check the box indicating that the action was “[f]rivolous, malicious, or fails to state 6 a claim upon which relief may be granted” or that the “denial may constitute a strike under the 7 ‘Three Strikes’ provision governing the filing of prisoner suits.” ECF No. 61-2 at 31. The 8 district court judge denied plaintiff’s IFP request and dismissed the case on September 9, 2015. 9 Id. In this case, the district court did not give plaintiff the opportunity to re-submit the IFP 10 application and it denied his subsequent motion for reconsideration. See ECF No. 62-1 at 31, 33- 11 35. 12 A district court’s denial of IFP status may constitute a strike when such status is denied 13 because the claims in the complaint are “’frivolous, malicious, or fails to state a claim upon which 14 relief may be granted.’” O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (quoting 28 U.S.C. 15 § 1915(g) ). In this case, it is clear to the court that denying plaintiff’s IFP application was due to 16 his failure to complete the form correctly and not in any way connected to the merits of his 17 claims. Therefore, the undersigned finds that this case does not constitute a strike under 28 18 U.S.C. § 1915(g). 19 4. Miles v. Cdcd Corporation and its Employee Officials, et al., (Case No. 2:15- 20 cv-09098 (C.D. Cal.) 21 In this civil action, plaintiff once again failed to properly complete his IFP application.4 22 See ECF No. 61-2 at 38, 40. The magistrate judge recommended denying plaintiff’s IFP request 23 3 The court takes judicial notice of plaintiff’s address at the time of filing this civil action. The 24 docket sheet indicates that plaintiff’s mailing address was at Atascadero State Hospital Unit. ECF No. 61-2 at 27. Therefore, it is not entirely clear from the records of this proceeding that plaintiff 25 was a “prisoner” at the time of filing. See Page v. Torrey, 201 F.3d 1136, 1140 (9th Cir. 2000) (holding that a civilly committed sexually violent predator is not a “prisoner” within the meaning 26 of the Prison Litigation Reform Act (“PLRA”)). 27 4 Once again, the docket sheet indicates that plaintiff’s mailing address was at Atascadero State Hospital Unit. ECF No. 61-2 at 37. Therefore, it is not entirely clear from the records of this 28 proceeding that plaintiff was a “prisoner” at the time of filing. 1 for failing to authorize disbursements from his prison trust account as well as for failing to 2 provide a certified copy of his trust fund statement for the 6 months preceding the filing date. 3 ECF No. 61-2 at 40. The court also noted that venue was not proper since plaintiff’s claims were 4 “against employees of California prisons located in the Eastern District of California.” ECF No. 5 61-2 at 40. Rather than transfer the case to the correct venue, the district court judge denied 6 plaintiff’s IFP application and dismissed the case. Id. 7 In this case there is no indication in the record that the court’s denial of IFP status was 8 based on any finding that the claims in the complaint were “frivolous, malicious, or fail[ed] to 9 state a claim upon which relief may be granted.” Nor does the court’s finding of improper venue 10 fall within one of the § 1915(g) categories. For these reasons, the undersigned does not find that 11 this case constitutes a strike. See O’Neal, 531 F.3d at 1153. 12 5. Miles v. Nielson, et al., Case No. 2:13-cv-02073 (C.D. Cal.) 13 In this civil action, plaintiff sued two Los Angeles police officers in their individual as 14 well as official capacities for falsely accusing him of criminal charges that he never committed 15 and for unlawfully shooting at him in the course of his arrest.5 ECF No. 61-2 at 46-51 16 (complaint). The complaint also named a deputy district attorney as an additional defendant. 17 ECF No. 61-2 at 42-43 (docket sheet). The magistrate judge recommended denying plaintiff’s 18 IFP application on multiple grounds. ECF No. 61-2 at 45. First, the magistrate noted several 19 deficiencies with plaintiff’s IFP request which included an “inadequate showing of indigency, [a] 20 failure to authorize disbursements from prison trust account…, [and a] failure to provide [a] 21 certified copy of [his] trust fund statement for the last six (6) months.” ECF No. 61-2 at 45. With 22 respect to the claims and defendants, the magistrate judge found that “[n]o cognizable official 23 capacity claim is stated” and that the complaint requested “monetary relief from a defendant 24 immune from such relief (defendant Deputy District Attorney Moore).” Id. On March 25, 2013, 25 the district court judge formally denied plaintiff’s IFP application and the case was closed. Id. 26
27 5 While the docket sheet for this case indicates that plaintiff’s mailing address was at Atascadero State Hospital Unit, at the time of filing the complaint, plaintiff indicated that he was in custody 28 at Wasco State Prison. Compare ECF No. 61-2 at 42 with ECF No. 61-2 at 46, 52-53. 1 For this particular case, the district court’s denial of IFP was connected to the claims 2 raised in plaintiff’s complaint. The dismissal was based on a finding that the official capacity 3 claims against the police officers were not cognizable and that defendant Moore was immune 4 from suit. However, the district court’s order did not address the individual capacity claims 5 against the police officers. A case must be dismissed in its entirety as frivolous, malicious, or for 6 failure to state a claim in order to constitute a strike. See Harris, 935 F.3d at 673. Defendants 7 have not met their burden of demonstrating that this entire action was dismissed as “frivolous, 8 malicious, or [the] fail[ure] to state a claim upon which relief may be granted.” See 28 U.S.C. § 9 1915(g); see also Andrews v. King, 398 F.3d at 1120. Therefore, the undersigned does not find 10 that this action constitutes a strike. This conclusion is supported by the district court’s dismissal 11 order itself which did not check the boxes for finding that the complaint was “frivolous, malicious 12 or fails to state a claim” or that the “denial may constitute a strike under the ‘Three Strikes’ 13 provision governing the filing of prisoner suits. 14 In this case, defendants have not met their burden of demonstrating that at least three of 15 plaintiff’s prior actions constitute strikes pursuant to 28 U.S.C. § 1915(g). See Andrews, 398 16 F.3d at 1121. Therefore, plaintiff’s failure to respond to the motion is of no significance because 17 the burden has not shifted to him to prove that such actions are not strikes. Id. For all these 18 reasons, the undersigned recommends denying defendants’ motion to revoke plaintiff’s in forma 19 pauperis status. 20 IV. Plain Language Summary for Pro Se Party 21 The following information is meant to explain this order in plain English and is not 22 intended as legal advice. 23 After reviewing all the documents submitted, the magistrate judge concluded that only 24 two of your prior civil actions or appeals constitute “strikes” under 28 U.S.C. § 1915(g). Since 25 this is not sufficient to revoke your in forma pauperis status, the undersigned recommends 26 denying defendants’ motion. 27 If you disagree with this recommendation, you have 14 days to explain why it is the 28 wrong result. Label your explanation as “Objections to Magistrate Judge’s Findings and 1 | Recommendations.” The district judge assigned to your case will review any objections filed and 2 || make the final decision in your case. 3 Accordingly, IT IS HEREBY ORDERED that the filing of a responsive pleading by 4 || defendants is stayed until the motion to revoke plaintiffs in forma pauperis status is adjudicated. 5 IT IS FURTHER RECOMMENDED that: 6 1. Defendants’ Motion to Revoke Plaintiffs In Forma Pauperis Status (ECF No. 61) be 7 denied. 8 2. Defendants be ordered to file an answer to plaintiffs fourth amended complaint within 9 30 days from the date of the district judge’s decision related to these findings and 10 recommendations. 11 These findings and recommendations are submitted to the United States District Judge 12 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 13 || after being served with these findings and recommendations, any party may file written 14 || objections with the court and serve a copy on all parties. Such a document should be captioned 15 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 16 || objections shall be served and filed within fourteen days after service of the objections. The 17 || parties are advised that failure to file objections within the specified time may waive the right to 18 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 19 | Dated: November 16, 2021 / □□□ / 4 ly a 20 CAROLYNK. DELANEY 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 || 12/mile1881.revokeIFP.no.opp.docx 28