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Claiborne v. Albonico


June 25, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendant's motion to dismiss (Doc. 21). Defendant argues this action should be dismissed because plaintiff is disqualified from proceeding in forma pauperis. Alternatively, defendant argues that, should the court allow this action to proceed, he should be required to post security.

As to plaintiff's in forma pauperis status, defendant cites 28 U.S.C. § 1915(g) which provides, in pertinent part, as follows:

In no event shall a prisoner bring a civil action . . . under this section if the prisoner was, on three or more prior occasions, while incarcerated or detained . . ., brought an action . . . in a court of the United States that was dismissed on the ground that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

Defendant asserts that plaintiff has three prior "strikes," referring to court records in Claiborne v. Chrones, C.D. Cal. Case No. 04-CV-9095, Claiborne v. Stevens, N.D. Cal. Case No. 06-CV-0212, and Claiborne v. Arenas, N.D. Cal. Case No. 02-CV-5025.*fn1 The first of these cases -- Claiborne v. Chrones -- was a habeas corpus petition which was dismissed as successive and frivolous. The other two cases were civil rights actions. Based on these three cases, defendant argues that the burden shifts to plaintiff to establish why § 1915(g) should not apply.

The court finds that defendant has not met his initial burden of identifying three qualifying "strikes" under § 1915(g). Specifically, a dismissed habeas petition does not count as a "strike" under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005). While defendant attaches a PACER list of 14 cases plaintiff has filed in federal court, he does not identify how those actions were resolved such that the court could conclude they should count as "strikes."

Turning to defendant's alternative argument, he asserts that plaintiff should be required to post security because he is a vexatious litigant. For a litigant to be declared vexatious, the court must do four things: (1) ensure that the litigant has been given notice and an opportunity to be heard; (2) develop an adequate record for review; (3) make specific findings about the nature of the plaintiff's litigation; and (4) narrowly tailor the vexatious litigant order to the specific vice encountered. See De Long v. Hennessey, 912 F.2d 1144, 147-48 (9th Cir. 1990). As noted above, the PACER list accompanying defendant's motion does not provide any detailed information about the cases on that list. Therefore, the court is unable to develop an adequate record for review or make any specific findings about plaintiff's other cases. As to the current action, the court concluded in its February 19, 2009, order that plaintiff has a reasonable opportunity to prevail on the merits if the allegations are proven.

Based on the foregoing, the undersigned recommends that defendant's motion to dismiss (Doc. 21) be denied and that defendant be required to file an answer.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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