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Robert P. Benyamini v. Mendoza

April 18, 2012

ROBERT P. BENYAMINI, PLAINTIFF,
v.
MENDOZA, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER & FINDINGS AND RECOMMENDATIONS

Plaintiff, a state prisoner proceeding pro se and in forma pauperis, seeks relief pursuant to 42 U.S.C. § 1983. Pending before the court are: 1) a motion to revoke plaintiff's in forma pauperis status, filed on September 13, 2011, brought by defendants Leese, Mendoza, Fumasi, Ramirez and Baumgarner, to which plaintiff filed his opposition on November 22, 2011, after which defendants filed a reply on December 13, 2011; 2) a motion to dismiss brought by defendants Leese, Mendoza, Fumasi, Ramirez and Baumgarner, also filed on September 13, 2011, to which plaintiff filed his opposition on November 22, 2011, following which defendants filed a reply on December 13, 2011*fn1 ; 3) plaintiff's motion to appoint counsel, filed on September 30, 2011; 4) plaintiff's "motion to halt cases," filed on October 6, 2011; 5) plaintiff's motion to stay, filed on October 12, 2011; 6) plaintiff's "motion compelling court to answer motion for default filed on 8-2-11," filed on November 1, 2011, which is summarily denied as the court can locate no such motion; 7) plaintiff's motion for default judgment, filed on November 1, 2011; 8) plaintiff's "motion seeking judg[]ment to motion for default," filed on November 30, 2011; 9) plaintiff's "second motion demanding judgment to motion for default," filed on December 13, 2011; 10) plaintiff's motion for default judgment, filed on April 6, 2012.

Renewed Motion for Appointment of Counsel

Plaintiff has again requested the appointment of counsel. The United States Supreme Court has ruled that district courts lack authority to require counsel to represent indigent prisoners in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain exceptional circumstances, the court may request the voluntary assistance of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). In the present case, the court does not find the required exceptional circumstances.*fn2 Plaintiff's motion for the appointment of counsel will therefore be denied.

Motion to Revoke IFP

"Three Strikes" Contention 28 U.S.C. § 1915 permits any court of the United States to authorize the commencement and prosecution of any suit without prepayment of fees by a person who submits an affidavit indicating that the person is unable to pay such fees. However, [i]n 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.

28 U.S.C. § 1915(g).

In forma pauperis status may be acquired and lost during the course of litigation.

Stehouwer v. Hennessey, 841 F. Supp. 316, 321 (N.D. Cal., 1994), vacated on other grounds by Olivares v. Marshall, 59 F.3d 109 (9th Cir. 1995). The plain language of the statute (§ 1915(g)) makes clear that a prisoner is precluded from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions and/or appeals (or any combination thereof totaling three). See Rodriguez v. Cook, 169 F.3d 1176, 1178 (9th Cir.1999). 28 U.S.C. § 1915(g) should be used to deny a prisoner's in forma pauperis status only upon a determination that each action reviewed (as a potential strike) is carefully evaluated to determine that it was dismissed as frivolous, malicious or for failure to state a claim. Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.2005). Defendant has the burden to "produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions ... dismissed because they were 'frivolous, malicious or fail[ed] to state a claim.'" Id., at 1120, quoting § 1915(g).

Actions filed and/or dismissed prior to the enactment of the Prison Litigation Reform Act on April 26, 1996, are to be evaluated to determine whether they qualify as strikes: "the plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the PLRA to determine when a prisoner has used his three strikes." Rodriguez v. Cook, 169 F.3d 1176, 1181, citing Tierney v. Kupers, 128 F.3d 1310, 1311-1312 (9th Cir. 1997).*fn3 The Ninth Circuit has recently determined that "a dismissal must be final before it counts as a 'strike' for § 1915(g) purposes." Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011); id. at 1099, quoting Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996) (§ 1915(g) dismissals "'include only those for which appeal has been exhausted or waived.'").

This means that a dismissal ripens into a "strike" for § 1915(g) purposes on "the date of the Supreme Court's denial or dismissal of a petition for writ of certiorari, if the prisoner filed one, or from the date when the time to file a petition for writ of certiorari expired, if he did not." Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1176 (10th Cir.2011); FN6 FN6. If a prisoner does not appeal a dismissal, the dismissal counts as a "strike" from the date when his time to file a direct appeal expired. See Hafed, 635 F.3d at 1175.

Silva v. Di Vittorio, 658 F.3d at 1100.

However, while an affirmance of a district court dismissal constitutes only a single strike and a reversal on appeal nullifies a strike, dismissal of an appeal as frivolous after a district court dismissal on grounds that the action was frivolous counts as a separate strike. Adepegba v. Hammons, 103 F.3d at 387-88. That is, when the appeal is frivolous on a separate ground or when the appeal of a district court dismissal as frivolous is, itself, frivolous, then the appeal dismissal is also a strike. Id. at 388. See also Thompson v. Gibson, 289 F.3d 1218, 1222 (10th Cir. 2002); Moran v. Sondalle, 218 F.3d 647, 651-52 (7th Cir. 2000) (both noting that frivolous appeals count as a strike). Dismissals as frivolous, malicious, or for failure to state a claim with or without prejudice may count as strikes. O'Neal v. Price, 531 F.3d 1146, 1154 (9th Cir. 2008).

This court, sua sponte, takes judicial notice of Benyamini v. Ogebeide, 2:10cv0101 KJM GGH P, filed by the instant plaintiff on January 13, 2010,*fn4 wherein the following was set forth on the motion of the defendant ...


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