1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWARD B. SPENCER, Case No. 1:19-cv-01615-DAD-HBK 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION TO 12 v. REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS 13 G. BEARD, et al., FOURTEEN DAY OBJECTION PERIOD 14 Defendants. (Doc. No. 19) 15
16 17 18 This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 25). 19 Plaintiff Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 20 action filed under 42 U.S.C. § 1983 on November 3, 2019. (Doc. No. 1). On November 20, 21 2019, the then assigned magistrate judge permitted Plaintiff to proceed in forma pauperis. (Doc. 22 No. 7). Pending is Defendants motion to revoke Plaintiff’s in forma pauperis status filed 23 September 4, 2020. (Doc. No. 19). Defendants claim that Plaintiff has accumulated at least three 24 qualifying strikes and should have been prohibited him from proceeding in forma pauperis in this 25 action under 28 U.S.C. § 1915(g). (Id.). Plaintiff filed an opposition to Defendants’ motion 26 (Doc. No. 24), followed by Defendants’ reply (Doc. No. 26). 27 Under the Prison Litigation Reform Act, prisoners who have “on 3 or more occasions … 28 brought an action or appeal in a court of the United States that was dismissed on the grounds that 1 it is frivolous, malicious, or fails to state a claim upon which relief may be granted” cannot 2 proceed in forma pauperis “unless the prisoner is under imminent danger of serious physical 3 injury.” 28 U.S.C. § 1915(g). This “three-strikes rule” was enacted to “help staunch a flood of 4 nonmeritorious prisoner litigation.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) 5 (internal quotations omitted). “Not all unsuccessful cases qualify as a strike under § 1915(g).” 6 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 7 Defendants identify four cases that they contend qualify as “strikes” against Plaintiff. 8 (Doc. No. 19 at 4-6). Plaintiff concedes that two of the cases qualify as strikes but contends the 9 other two cases Defendants identify do not. (Doc. No. 24 at 2-3). Plaintiff also generally alleges 10 the “imminent danger” exception to the three-strike bar. (Id. at 3). The Court reviews each of the 11 cases cited by Defendants but finds only two qualify as strikes under governing precedent. 12 1. Spencer v. Sherman, et al., No. 1:17-cv- 025-LJO-EPG (E.D. Cal. Apr. 25, 2018) 13 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 14 Sherman, et al., No. 1:17-CV-1025-LJO-EPG (E.D. Cal.) issued Findings and Recommendations 15 that Plaintiff’s first amended complaint be dismissed for failure to state a claim. (Doc. No. 12). 16 The Court adopted those Findings and Recommendations and dismissed the action with prejudice 17 “for failure to state a claim” on April 25, 2018, and judgment was entered the same day. (Doc. 18 Nos. 17, 18). Because 28 U.S.C. § 1915(g) lists failure to state a claim as a strike, and because 19 judgment was entered prior to Plaintiff’s present action, the dismissal in Spencer v. Sherman 20 counts as Plaintiff’s first strike. Plaintiff acknowledges that this case qualifies as a strike. (Doc. 21 No. 24 at 2). 22 2. Spencer v. Kokol, No. 1:17-cv-1561-LJO-BAM (E.D. Cal. June 26, 2018) 23 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 24 Kokol, No. CV 1:17-1561 LJO BAM (E.D. Cal.) issued Findings and Recommendations that 25 Plaintiff’s first amended complaint be dismissed for failure to state a claim. (Doc. No. 12). The 26 Court adopted those Findings and Recommendations and dismissed the action with prejudice “for 27 failure to state a claim” on June 26, 2018, and judgment was entered the same day. (Doc. Nos. 28 14, 15). Because 28 U.S.C. § 1915(g) lists failure to state a claim as a strike, and because 1 judgment was entered prior to Plaintiff commencing his present action, the dismissal in Spencer 2 v. Kokol counts as Plaintiff’s second strike. Plaintiff concedes that this case qualifies as a strike. 3 (Doc. No. 24 at 2). 4 3. Spencer v. Kokol, No. 18-16261 (9th Cir. Dec. 5, 2018) 5 Plaintiff timely appealed the judgment of dismissal of Spencer v. Kokol, Case No. 1:17- 6 CV-1025-LJO-EPG (E.D. Cal.), to the Ninth Circuit. (Doc. No. 16). The Court permitted 7 Plaintiff to proceed in forma pauperis on appeal, finding the appeal was “not taken in bad faith 8 and is not frivolous.” (Doc. No. 20). The Ninth Circuit conducted a de novo review and 9 concluded “the district court properly dismissed Spencer’s action because Spencer failed to allege 10 facts sufficient to show that defendant was deliberately indifferent to Spencer’s health condition.” 11 Spencer v. Kokol, No. 18-16261, Doc. No. 8 (9th Cir. Dec. 5, 2018). In affirming the district’s 12 court’s dismissal, the Ninth Circuit did not state that the appeal was either frivolous or malicious. 13 Defendants argue Plaintiff’s unsuccessful appeal in Spencer v. Kokol constitutes a strike, 14 and cite to In re Thomas, 508 F.3d 1225, 1226-27 (9th Cir. 2007) to argue that “[s]ummarily 15 affirming a final judgment on appeal is comparable to dismissing a frivolous complaint.” (Doc. 16 No. 19 at 4). Defendants misstate the Ninth Circuit’s opinion. The Ninth Circuit, in addressing 17 the review necessary to determine whether an appeal could proceed in a case where the court has 18 issued a pre-filing review order, stated “[l]ike summarily affirming a final judgment on appeal or 19 dismissing a frivolous complaint, precluding an appellant from proceeding with a petition or 20 appeal pursuant to a pre-filing order restricts access to court, and therefore must be based on 21 adequate justification supported in the record and narrowly tailored to address the abuse 22 perceived.” Id. at 1227 (internal quotations omitted). The Ninth Circuit did not hold summary 23 affirmances are equivalent to a finding of frivolousness and in no way suggested that an 24 affirmance of a final judgment automatically counts as a strike. Defendants cite no other caselaw 25 to support their argument and indeed precedent holds otherwise. 26 The Ninth Circuit has further distinguished between affirming a lower court’s finding on 27 one of § 1915’s enumerated grounds and dismissing the appeal on one of the enumerated grounds 28 and expressly held that “appellate affirmances do not count as strikes unless the court expressly 1 states that the appeal itself was frivolous, malicious or failed to state a claim.” El-Shaddai v. 2 Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (internal quotations omitted) (emphasis added). 3 Because the Ninth Circuit affirmed the district court’s finding that the complaint failed to state 4 claim and did not dismiss the appeal itself on the basis that the appeal failed to state a claim, the 5 Court finds that the appeal in Spencer v. Kokol does not count as a strike. 6 4. Spencer v. Beeler, et al., No. 1:13-cv-1624-LJO-BAM (E.D. Cal. Sept. 22, 2014) 7 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 8 Beeler, et al., No. 1:13-cv-1624-LJO-BAM (E.D.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 EDWARD B. SPENCER, Case No. 1:19-cv-01615-DAD-HBK 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION TO 12 v. REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS 13 G. BEARD, et al., FOURTEEN DAY OBJECTION PERIOD 14 Defendants. (Doc. No. 19) 15
16 17 18 This matter was reassigned to the undersigned on November 17, 2020. (Doc. No. 25). 19 Plaintiff Edward B. Spencer (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 20 action filed under 42 U.S.C. § 1983 on November 3, 2019. (Doc. No. 1). On November 20, 21 2019, the then assigned magistrate judge permitted Plaintiff to proceed in forma pauperis. (Doc. 22 No. 7). Pending is Defendants motion to revoke Plaintiff’s in forma pauperis status filed 23 September 4, 2020. (Doc. No. 19). Defendants claim that Plaintiff has accumulated at least three 24 qualifying strikes and should have been prohibited him from proceeding in forma pauperis in this 25 action under 28 U.S.C. § 1915(g). (Id.). Plaintiff filed an opposition to Defendants’ motion 26 (Doc. No. 24), followed by Defendants’ reply (Doc. No. 26). 27 Under the Prison Litigation Reform Act, prisoners who have “on 3 or more occasions … 28 brought an action or appeal in a court of the United States that was dismissed on the grounds that 1 it is frivolous, malicious, or fails to state a claim upon which relief may be granted” cannot 2 proceed in forma pauperis “unless the prisoner is under imminent danger of serious physical 3 injury.” 28 U.S.C. § 1915(g). This “three-strikes rule” was enacted to “help staunch a flood of 4 nonmeritorious prisoner litigation.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) 5 (internal quotations omitted). “Not all unsuccessful cases qualify as a strike under § 1915(g).” 6 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 7 Defendants identify four cases that they contend qualify as “strikes” against Plaintiff. 8 (Doc. No. 19 at 4-6). Plaintiff concedes that two of the cases qualify as strikes but contends the 9 other two cases Defendants identify do not. (Doc. No. 24 at 2-3). Plaintiff also generally alleges 10 the “imminent danger” exception to the three-strike bar. (Id. at 3). The Court reviews each of the 11 cases cited by Defendants but finds only two qualify as strikes under governing precedent. 12 1. Spencer v. Sherman, et al., No. 1:17-cv- 025-LJO-EPG (E.D. Cal. Apr. 25, 2018) 13 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 14 Sherman, et al., No. 1:17-CV-1025-LJO-EPG (E.D. Cal.) issued Findings and Recommendations 15 that Plaintiff’s first amended complaint be dismissed for failure to state a claim. (Doc. No. 12). 16 The Court adopted those Findings and Recommendations and dismissed the action with prejudice 17 “for failure to state a claim” on April 25, 2018, and judgment was entered the same day. (Doc. 18 Nos. 17, 18). Because 28 U.S.C. § 1915(g) lists failure to state a claim as a strike, and because 19 judgment was entered prior to Plaintiff’s present action, the dismissal in Spencer v. Sherman 20 counts as Plaintiff’s first strike. Plaintiff acknowledges that this case qualifies as a strike. (Doc. 21 No. 24 at 2). 22 2. Spencer v. Kokol, No. 1:17-cv-1561-LJO-BAM (E.D. Cal. June 26, 2018) 23 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 24 Kokol, No. CV 1:17-1561 LJO BAM (E.D. Cal.) issued Findings and Recommendations that 25 Plaintiff’s first amended complaint be dismissed for failure to state a claim. (Doc. No. 12). The 26 Court adopted those Findings and Recommendations and dismissed the action with prejudice “for 27 failure to state a claim” on June 26, 2018, and judgment was entered the same day. (Doc. Nos. 28 14, 15). Because 28 U.S.C. § 1915(g) lists failure to state a claim as a strike, and because 1 judgment was entered prior to Plaintiff commencing his present action, the dismissal in Spencer 2 v. Kokol counts as Plaintiff’s second strike. Plaintiff concedes that this case qualifies as a strike. 3 (Doc. No. 24 at 2). 4 3. Spencer v. Kokol, No. 18-16261 (9th Cir. Dec. 5, 2018) 5 Plaintiff timely appealed the judgment of dismissal of Spencer v. Kokol, Case No. 1:17- 6 CV-1025-LJO-EPG (E.D. Cal.), to the Ninth Circuit. (Doc. No. 16). The Court permitted 7 Plaintiff to proceed in forma pauperis on appeal, finding the appeal was “not taken in bad faith 8 and is not frivolous.” (Doc. No. 20). The Ninth Circuit conducted a de novo review and 9 concluded “the district court properly dismissed Spencer’s action because Spencer failed to allege 10 facts sufficient to show that defendant was deliberately indifferent to Spencer’s health condition.” 11 Spencer v. Kokol, No. 18-16261, Doc. No. 8 (9th Cir. Dec. 5, 2018). In affirming the district’s 12 court’s dismissal, the Ninth Circuit did not state that the appeal was either frivolous or malicious. 13 Defendants argue Plaintiff’s unsuccessful appeal in Spencer v. Kokol constitutes a strike, 14 and cite to In re Thomas, 508 F.3d 1225, 1226-27 (9th Cir. 2007) to argue that “[s]ummarily 15 affirming a final judgment on appeal is comparable to dismissing a frivolous complaint.” (Doc. 16 No. 19 at 4). Defendants misstate the Ninth Circuit’s opinion. The Ninth Circuit, in addressing 17 the review necessary to determine whether an appeal could proceed in a case where the court has 18 issued a pre-filing review order, stated “[l]ike summarily affirming a final judgment on appeal or 19 dismissing a frivolous complaint, precluding an appellant from proceeding with a petition or 20 appeal pursuant to a pre-filing order restricts access to court, and therefore must be based on 21 adequate justification supported in the record and narrowly tailored to address the abuse 22 perceived.” Id. at 1227 (internal quotations omitted). The Ninth Circuit did not hold summary 23 affirmances are equivalent to a finding of frivolousness and in no way suggested that an 24 affirmance of a final judgment automatically counts as a strike. Defendants cite no other caselaw 25 to support their argument and indeed precedent holds otherwise. 26 The Ninth Circuit has further distinguished between affirming a lower court’s finding on 27 one of § 1915’s enumerated grounds and dismissing the appeal on one of the enumerated grounds 28 and expressly held that “appellate affirmances do not count as strikes unless the court expressly 1 states that the appeal itself was frivolous, malicious or failed to state a claim.” El-Shaddai v. 2 Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (internal quotations omitted) (emphasis added). 3 Because the Ninth Circuit affirmed the district court’s finding that the complaint failed to state 4 claim and did not dismiss the appeal itself on the basis that the appeal failed to state a claim, the 5 Court finds that the appeal in Spencer v. Kokol does not count as a strike. 6 4. Spencer v. Beeler, et al., No. 1:13-cv-1624-LJO-BAM (E.D. Cal. Sept. 22, 2014) 7 After screening Plaintiff’s first amended complaint, the magistrate judge in Spencer v. 8 Beeler, et al., No. 1:13-cv-1624-LJO-BAM (E.D. Cal) found the complaint failed to state a claim 9 and dismissed Plaintiff’s complaint “with leave to amend.” (Doc. No. 11). The court’s order 10 further provided that if plaintiff failed to timely file an amended complaint, the “action will be 11 dismissed for failure to state a claim.” (Id., ¶ 4) (emphasis in original). Plaintiff filed a timely 12 notice of voluntary dismissal in lieu of amending his complaint. (Doc. No. 12). The matter was 13 consequently dismissed on September 22, 2014 and in ordering closure, the Court directed the 14 Clerk to “reflect voluntary dismissal of this action without prejudice pursuant to Fed. R. Civ. P. 15 41(a).” (Doc. No. 14 at 2). No judgment was entered. (See docket). 16 Defendants argue that a finding of failure to state a claim counts as a strike even when the 17 Plaintiff subsequently voluntarily dismisses the case, and cite to Harris v. Mangum, 863 F.3d 18 1133 (9th Cir. 2017) in support. (Doc. No. 19 at 4-6). The disputed strikes in Harris were cases 19 where the plaintiff was ordered to amend their complaint after screening determined it failed to 20 state a claim. Harris, 863 F.3d at 1141-42. When the plaintiff failed to timely file an amended 21 complaint, the court dismissed the matter for failure to comply with a court order. Id. The Harris 22 court rejected the argument that those cases did not count as strikes because they were dismissed 23 for failure to follow a court order, not for failure to state a claim. Id. at 1142. Instead, the Harris 24 court noted that because the “dismissal of each of Harris's prior actions rang the PLRA bells of 25 failure to state a claim,” the dismissals qualified as strikes. Id. at 1142. 26 Harris is distinguishable from the present matter. Plaintiff’s complaint in Spencer v. 27 Beeler was not dismissed for failure to prosecute or failure to follow court orders, but voluntarily 28 dismissed. Indeed, Plaintiff was warned that if he failed to file an amended complaint the court 1 would consider his failure to timely file an amended complaint as a dismissal for failure to state a 2 claim. Instead, Plaintiff timely moved, as was his right, under Fed. R. Civ. P. 41(a). As stated in 3 the Court’s acceptance of Plaintiff’s voluntary dismissal, 4 [U]nder Rule 41(a)(1)(i), a plaintiff has an absolute right to voluntarily dismiss his action prior to service by the defendant of an 5 answer or a motion for summary judgment.” Commercial Space Mgmt. Co., Inc. v. Boeing Co., Inc., 193 F.3d 1074, 1077 (9th Cir. 6 1999) (quotation and citation omitted). “[A] dismissal under Rule 41(a)(1) is effective on filing, no court order is required, the parties 7 are left as though no action had been brought, the defendant can’t complain, and the district court lacks jurisdiction to do anything 8 about it.” Id. at 1078. 9 (Doc. No. 14 at 1). The Ninth Circuit has not addressed whether a voluntary dismissal following 10 a finding of failure to state a claim counts as a strike, and federal courts across the nation are split. 11 Avery v. Stainer, No. 2:18-CV-1302-JAM-ACP, 2021 WL 1153773, at *3 (E.D. Cal. Mar. 26, 12 2021), report and recommendation adopted, No. 2:18-CV-1302-JAM-ACP, 2021 WL 2652117 13 (E.D. Cal. June 28, 2021) (collecting cases). In considering this issue, the Avery court concluded 14 that such voluntary dismissals do not count as strikes because the decision to dismiss was 15 ultimately the plaintiff’s, not the court’s. Id. The undersigned agrees and finds no rationale to 16 penalize a pro se prisoner litigant who exercises his procedural right to elect a voluntary dismissal 17 under Fed. R. Civ. P. 41(a)(1) instead of filing an amended complaint under Fed. R. Civ. P. 15(a) 18 after the initial complaint is found deficient. Accordingly, the undersigned finds Plaintiff’s 19 voluntary dismissal under Fed. R. Civ. P. 41(a)(1) after being afforded an opportunity to amend 20 his complaint in Spencer v. Beeler does not constitute a strike. 21 Defendants bear the burden of producing “documentary evidence that allows the district 22 court to conclude that the plaintiff has filed at least three prior actions that were dismissed 23 because they were frivolous, malicious or fail[ed] to state a claim.” Andrews v. King, 398 F.3d 24 1113, 1120 (9th Cir. 2005) (internal quotations omitted). Here, Defendants identify only two 25 qualifying strikes against Plaintiff prior to the date plaintiff initiated the instant action. Because 26 Defendants have not identified three or more qualifying cases as required by § 1915(g), the Court 27 28 1 | finds no basis to revoke plaintiff's in forma pauperis status.! Consequently, the Court need to 2 | consider whether the “imminent danger” exception applies in this case. 3 Accordingly, it is RECOMMENDED: 4 Defendants’ motion to revoke Plaintiffs in forma pauperis status (Doc. No. 19) be 5 | denied. 6 NOTICE TO PARTIES 7 These findings and recommendations will be submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 9 | (14) days after being served with these findings and recommendations, a party may file written 10 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 11 | Findings and Recommendations.” Parties are advised that failure to file objections within the 12 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 13 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 1s IT IS SO ORDERED. Dated: July 2, 2021 law Nh. fareh Base □□□ 17 HELENA M. BARCH-KUCHTA 13 UNITED STATES MAGISTRATE JUDGE
19 20 21 22 23 24 25 26 ————_ ' Plaintiff has been granted IFP status in subsequently filed cases, and no motions have been filed to 27 revoke his status. See Spencer v. Milan, No. CV 1:20-682 GSA (E.D. Cal); Spencer v. Jasso et al., No. CV 1:20-909 DAD GSA (E.D. Cal); Spencer v. Pulido-Esparza et al., No. CV 1:20-1176 GSA (E.D. Cal); 28 | and Spencer v. Lopez, No. CV 1:20-1203 JLT (E.D. Cal).