The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS (Doc. No. 58) OBJECTIONS DUE WITHIN 30 DAYS
Plaintiff Raymond Wright ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On February 23, 2010, Defendants filed a motion to dismiss on the grounds that Plaintiff "knowingly filed a false declaration under penalty of perjury." (Doc. #58.) Plaintiff filed an opposition to Plaintiff's motion on March 10, 2010. (Doc. #59.) Defendants filed a reply to Plaintiff's opposition on March 22, 2010. (Doc. #61.)
A. Defendants' Motion to Dismiss
Defendants contend that they are entitled to "dismissal on the grounds that Plaintiff knowingly filed a false declaration under penalty of perjury." (Defs.' Not. of Mot. and Mot. to Dismiss 1:22-24.) Defendants argue that Plaintiff indicated in his Amended Complaint that he had filed seven (7) previous lawsuits. (Mem. of P. & A. in Supp. of Mot. to Dismiss 1:26.) Defendants note that Plaintiff signed his complaint under penalty of perjury and counter Plaintiff's allegation with evidence that Plaintiff has in fact filed nine (9) other district court cases, plus seven (7) appeals to the Ninth Circuit related to those cases. (P. & A. in Supp. of Mot. to Dismiss 1:27-2:1.)
Defendants contend that dismissal is proper as a sanction under Federal Rule of Civil Procedure 11 as Plaintiff's failure to disclose the other cases was significant because it was relevant in determining whether Plaintiff's request for in forma pauperis status should be granted. (P. & A. in Supp. of Mot. to Dismiss 4:27-5:4.)
B. Plaintiff's Opposition
In his opposition, Plaintiff argues that this action should not be dismissed because he did not lie in his complaint. Plaintiff argues that some of the cases cited by Defendants are actually identical because they are based on the same facts and we re-filed after the district court dismissed them due to Plaintiff's failure to include a trust account statement with his in forma pauperis application, or because Plaintiff failed to exhaust his administrative remedies. In another case, Plaintiff alleges that the district court erroneously opened two separate cases based on a single complaint. The court closed the second case after Plaintiff informed the court about the error. Plaintiff argues that any miscalculation of the number of previous lawsuits he has filed was a harmless error that does not warrant dismissal of this action.
Defendants reiterate that this action should be dismissed based on Plaintiff's misrepresentations in his complaint. Defendants concede that one of the cases cited in their motion to dismiss appears to have been erroneously opened by the district court, and it was reasonable for Plaintiff not to note that case in his complaint. (Defs.' Reply to Pl.'s Opp'n to Mot. to Dismiss 2:14-17.) However, Defendants contend that Plaintiff knowingly omitted to disclose the other cases that may have affected his eligibility for in forma pauperis status. (Reply 2:23-3:14.)
Defendants' motion to dismiss requests that the Court dismiss this action as a sanction against Plaintiff for knowingly making false allegations in his original complaint. Rule 11 provides in relevant part:
By presenting to the court a pleading . . . whether by signing, filing, submitting, or later advocating it--an . . . unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery . . .
Federal Rule of Civil Procedure 11(b). Rule 11 also provides that: If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any . . . ...