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Finley v. Gonzales

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 20, 2009

JOWELL FINLEY, PLAINTIFF,
v.
T. GONZALES, III, ET AL., DEFENDANTS.

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).

A. Legal Standard

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.

B. Discussion

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 of the full filing fee. O'Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008). The issue then is whether case No. 02-4434 was dismissed because the claim was frivolous, malicious, or failed to state a claim upon which relief may be granted.

1. Failure to Exhaust Administrative Remedies

The Magistrate Judge dismissed case No. 02-4434 in part because Plaintiff failed to exhaust administrative remedies. Typically, a dismissal for failure to exhaust administrative remedies is without prejudice, Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir. 2003), but this does not necessarily preclude a finding that the dismissal counts as a strike pursuant to § 1915(g). See O'Neal, 531 F.3d at 1154 (quoting Day v. Maynard, 200 F.3d 665, 667 (10th Cir. 1999)) ("A dismissal without prejudice counts as a strike, so long as the dismissal was made because the action is frivolous, malicious, or fails to state a claim." ). However, the Ninth Circuit has not found that dismissal solely for failure to exhaust administrative remedies is sufficient to count as a strike under § 1915(g). See O'Neal, 531 F.3d at 1154 n. 9 (noting that in Second Circuit, actions dismissed for failure to exhaust on procedural grounds are not necessarily strikes under § 1915(g)). A fair reading of § 1915(g) and the exhaustion cases in this Circuit does not support a finding that a dismissal for failure to exhaust is sufficient by itself to count as a strike. Defendants present no arguments that would support such a finding. Thus, in order for case No. 02-4434 to count as a strike here, the dismissal for failure to exhaust must have been done on the grounds that the action is frivolous, malicious, or fails to state a claim.

2. Suing State Officials In Their Official Capacity For Money Damages

The Magistrate Judge in case No. 02-4434 gave her other reason for dismissal as: Plaintiff may not sue state officials in their official capacity for money damages. (Defs.' Exhs. C-2 and C-3.) This is not the same as a claim dismissed as malicious, frivolous, or fails to state a claim. Congress in the Prisoner Litigation Reform Act ("PLRA") clearly made a distinction between claims dismissed on the grounds that it is 1) malicious, frivolous, or fails to state a claim, and 2) seeking monetary relief from a defendant who is immune from relief. See 28 U.S.C. § 1915(A) (district court must review "before docketing" prisoner's complaint against "a governmental entity or officer or employee of a governmental entity," and district court must dismiss complaint if it is "frivolous, malicious, or fails to sta te a claim upon which relief may be granted," or "seeks monetary relief from a defendant who is immune from such relief"); 28 U.S.C. § 1915(e)(2)(B) (district court must dismiss prisoner's in forma pauperis case "at any time" if the court determines that the action is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief"); 42 U.S.C. § 1997e(c) (a district court must "on its own motion or on the motion of a party" dismiss prisoner's action "brought with respect to prison conditions . . . if the court is satisfied that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief."); O'Neal, 531 F.3d at 1152-53.

A dismissal of an action counts as a strike pursuant to § 1915(g) only if those cases were dismissed "on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(g). The statute clearly omits dismissal on the grounds that the action seeks monetary relief from a defendant who is immune from such relief. Congress clearly made a distinction between dismissal when an action is frivolous, malicious, or fails to state a claim, and when an action seeks monetary relief from a defendant who is immune from such relief. Thus, the dismissal in case No. 02-4434 for failure to exhaust and for seeking monetary relief from a defendant who is immune from such relief does not count as a strike for purposes of § 1915(g).*fn3

Plaintiff has clearly incurred two strikes pursuant to § 1915(g). However, the Court rejects defendants' arguments that case No. 02-4434's dismissal counts as a third strike pursuant to § 1915(g). Accordingly, defendants' motion should be denied.

II. Conclusion and Recommendation

For the foregoing reasons, the Court HEREBY RECOMMENDS that defendants' Motion to Dismiss, filed May 20, 2009, be DENIED.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


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