The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DEFENDANTS' MOTION TO DISMISS BE DENIED (Doc. 36) OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS
I. Findings and Recommendation
Plaintiff Jowell Finley ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on January 15, 2008. This action is proceeding against defendants A. D. Olive and M. Pina for failure to protect Plaintiff's safety in violation of the Eighth Amendment.*fn1 Plaintiff was granted leave to proceed in forma pauperis on January 25, 2008. On May 20, 2009, defendants A. D. Olive and M. Pina moved this Court to dismiss Plaintiff's case pursuant to 28 U.S.C. § 1915(g), on the ground that Plaintiff is not entitled to proceed in forma pauperis in this action. (Doc. 36, Defs.' Mot. To Dismiss.) On June 1, 2009, Plaintiff filed his opposition. (Doc. 44, Pl.'s Opp'n to Defs.' Mot. To Dismiss.) The Court deems the matter submitted. L. R. 78-230(m).
Title 28, section 1915(g), which governs in forma pauperis proceedings in federal court, provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds 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.
In making a determination as to whether a prisoner plaintiff may proceed in forma pauperis, the Court must consider all civil actions an appeals brought by the prisoner in any federal court. Of all actions and appeals previously brought, only those actions and appeals that count as strikes for purposes of § 1915(g) are those actions and appeals dismissed because they are "frivolous, malicious, or fail to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g).
When a defendant challenges a prisoner's right to proceed in forma pauperis, the defendant bears the burden of producing sufficient evidence to establish that § 1915(g) bars the plaintiff's in forma pauperis status. Andrews v. King, 398 F.3d 1113, 1116 (9th Cir. 2003). Once the defendant has made a prima facie case, the burden shifts to the plaintiff to persuade the court that § 1915(g) does not apply. Id.
Plaintiff filed this civil action on January15, 2008. Thus, the only relevant cases that would count as strikes under § 1915(g) are those dismissed prior to January 15, 2008. The Court takes judicial notice of the orders of the United States District Court for the Eastern District of California and for the Central District of California provided by defendants in support of their motion.*fn2 The three cases cited by defendants were dismissed before January 15, 2008 and are thus relevant. The three cases are:
Finley v. D. Lee, et al., No.2:02-cv-09627-R MAN (C.D. Cal.) (order filed May 23, 2003);
Finley v. Ironwood State Prison, et al.,2:02-cv-04434-UA-MAN (C.D. Cal.) (order filed July 11, 2002); and Finley v. Quinn, et al., 1:04-cv-05463-AWI-LJO (E.D. Cal.) (order filed July 1, 2005). (Doc. 37, Defs.' Exhs. in Supp. of Mot. to Dismiss, Exhs. A to D-3.)
It is quite clear that two of the three cases listed by defendants count as strikes under § 1915(g). In case No. 02-9627, filed in the Central District, the Magistrate Judge issued a Findings and Recommendations on April 15, 2003, specifically finding that Plaintiff had failed to state any federal claims. (Doc. 37, Defs.' Exh. B-1.) On May 23, 2003, the District Judge adopted the Findings and Recommendations in full and issued a judgment to that effect. (Defs. Exhs. B-2 and B-3.) In case No. 04-05463, filed in the Eastern District, the Magistrate Judge issued a Findings and Recommendations on May 7, 2005, also finding that Plaintiff had failed to state any federal claims. (Defs. Exh. D-1.) On June 30, 2005, the District Judge adopted the Findings and Recommendations in full, and judgment was issued in accordance with the court's order. (Defs.' Exh. D-2.)
However, the Court does not find that the third case submitted by defendants counts as a strike under § 1915(g). In case No. 02-4434, filed in the Central District, the Magistrate Judge issued an order on June 17, 2002, denying Plaintiff's application to file the action without prepayment of the filing fee because 1) Plaintiff's claim was not exhausted; and 2) Plaintiff may not sue state officials in their official capacity for money damages. (Defs.' Exh. C-2.) The Magistrate Judge issued another order on July 11, 2002, reiterating the Judge's previous order. (Defs.' Exh. C-3.) When a district court disposes of an in forma pauperis complaint "on the grounds that the claim is frivolous, malicious, or fails to state a claim upon which relief may be granted," that complaint is dismissed for purposes of § 1915(g) even if the district court styles such dismissal as a denial of the prisoner's application to file the action without prepayment ...