UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION
June 18, 2012
PAUL ANTHONY RUPE, PLAINTIFF,
M. CATE, SECRETARY OF CORRECTIONS, ET. AL., DEFENDANTS.
The opinion of the court was delivered by: Edward F. Shea Senior United States District Judge
ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS AND STRIKING SCHEDULING CONFERENCE
Before the Court, without oral argument, is Defendants' Motion to Revoke In Forma Pauperis Status under 28 U.S.C. [§] 1915(g), ECF No. 112. Though Mr. Rupe has not responded to Defendants' motion, the Court finds that it is fully informed after reviewing the submitted material and applicable authority. For the reasons discussed below, the Court revokes Mr. Rupe's in forma pauperis status, requires him to pay the $350.00 filing fee in full within thirty days, and strikes the June 19, 2012 scheduling conference
Mr. Rupe filed the Complaint in this matter on October 16, 2008, ECF No. 1, and filed an Amended Complaint on July 24, 2009. ECF No. 31. On February 1, 2010, the Court granted in part and denied in part Defendants' motion to dismiss, ECF No. 48, and on February 24, 2010, Mr. Rupe filed a second Amended Complaint. ECF No. 51. Defendants answered the Complaint on June 15, 2010. ECF No. 68. On October 13, 2011, the Court denied Mr. Rupe's motions for summary judgment, for leave to conduct third-party discovery, and to compel discovery. ECF No. 96. Mr. Rupe filed a third Amended Complaint on December 14, 2011, ECF No. 101, which Defendants answered on February 16, 2012. ECF No. 105. A telephonic status conference is set for June 19, 2012. ECF No. 107.
II. Defendants' Motion to Revoke In Forma Pauperis Status
Defendants move to revoke Mr. Rupe's in forma pauperis status pursuant to § 1915 because Mr. Rupe has "on three 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." 28 U.S.C. § 1915(g). When a prisoner has three or more "strikes" under § 1915(g), the Court must revoke the prisoner's in forma pauperis status and give him an opportunity to pay the filing fee.*fn1 Id. ("In no event shall a prisoner bring a civil action or appeal a judgment" if they meet the above criteria); see also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). "Not all unsuccessful cases qualify as a strike under § 1915(g)," however, and courts must make a "careful evaluation of the order dismissing an action" before determining that the prior action was dismissed because it was frivolous, malicious, or failed to state a claim. Andrews v. King, 393 F.3d 1113, 1121 (9th Cir. 2005). Defendants bear the burden of producing documentary evidence showing that Mr. Rupe has three or more § 1915(g) strikes. Id. at 1120.
As a preliminary matter, the Court takes judicial notice of the prior court records Defendants submitted, ECF No. 112-2, pursuant to Federal Rule of Evidence 201(c)(2). Courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)). Here, the Court takes notice of the three prior dismissed actions and one prior dismissed appeal referenced in the materials Defendants submitted. The Court analyzes each matter in turn to determine whether each was dismissed as frivolous, malicious, or for failing to state a claim.
A. Paul Anthony Rupe v. J.S. Woodward, et al., E.D. Cal. no. CIVS-04-2630 LKK DAD & 9th Cir. no. 06-15905
The dismissals of this case by both the district court and the Ninth Circuit qualify as strikes under § 1915(g). The District Court's Order adopting the Magistrate Judge's report and recommendation clearly states: "[t]his action is dismissed for failure to state a claim." ECF No. 112-2 at 13. And the submitted Ninth Circuit docket for the case indicates that Mr. Rupe's motion to proceed in forma pauperis was denied on July 20, 2006, and the case was dismissed for failure to prosecute on August 21, 2006, because Mr. Rupe had not paid the filing fee. Id. at 18. Because the Ninth Circuit denied Mr. Rupe's motion for in forma pauperis status after his case had been dismissed for failure to state a claim and required Mr. Rupe to "simultaneously show cause why the jgmt [sic] challenged in this appeal should not be summarily affirmed," and because § 1915 applies to both actions and appeals, the Ninth Circuit's dismissal for failure to prosecute counts as a strike under § 1915(g). See O'Neal v. Price, 531 F.3d 1146, 1152-53 (9th Cir. 2008) (interpreting the term "dismissed" under § 1915(g) to include termination by the court following denial of in forma pauperis status on ground that complaint is frivolous); see also East v. Tigert, E.D. Cal. no. 1:10-cv-02174-LJO-MJS, 2011 U.S. Dist. LEXIS 142651 at 5 n.4 (relying upon O'Neal to find that Ninth Circuit's dismissal for failure to prosecute after inmate had failed to pay appeal filing fee constituted a strike under § 1915(g)). Accordingly, the Court finds that the district court and Ninth Circuit's dismissals of Mr. Rupe's Woodward case each constitute a strike under § 1915(g).
B. Paul Anthony Rupe v. James Gomez, et al., N.D. Cal. Case no. C-94-1296-EFL
While § 1915(g) does require the Court to consider actions dismissed before § 1915(g)'s 1996 enactment, see Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997), the Court finds that this action was not dismissed because it was frivolous, malicious, or failed to state a claim, but rather was voluntarily dismissed. See ECF No. 112-2 at 45-46 ("The Court will therefore DISMISS WITH PREJUDICE plaintiff's claim against defendant Marshall for violation of his First Amendment rights. Fed. R. Civ. P. 41(a)(2)." (emphasis added; capitalization in original)). Accordingly, the Court finds that this case does not constitute a strike under § 1915(g).
C. Paul Anthony Rupe v. David J. Tirapelle, et al., N.D. Cal. no. C-9302525 EFL
This matter was dismissed on November 16, 1993, pursuant to the district court's screening of the Complaint under the precursor to § 1915(e), 28 U.S.C. § 1915(d), Pub. L. No. 96-82, 93 Stat. 645 § 6 (1979) (hereinafter "old § 1915(d)"). Old § 1915(d) permitted courts to "dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious," id., a sort of prototype of the language of current § 1915(e). Under judicial interpretation of old § 1915(d), courts were permitted to dismiss an action under § 1915(d) as "frivolous where it lacks an arguable basis either in law or in fact." Denton v. Hernandez, 504 U.S. 25, 31 (1992) (quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)). This is exactly what the court did: it cited old § 1915(d) and recognized that it could "dismiss sua sponte those claims premised on meritless legal theories or that clearly lack any factual basis," then proceeded to briefly discuss Mr. Rupe's allegations and dismiss the case. ECF No. 112-2 at 48-50. Furthermore, the Ninth Circuit interprets current § 1915(g) in accord with its "ordinary, contemporary, common meaning," and finds a case frivolous "if it is 'of little weight or importance: having no basis in law or fact,'" Andrews, 398 F.3d at 1121 (quoting Webster's Third New International Dictionary 913 (1993)). Mr. Rupe's Tirapelle case meets this standard. Accordingly, the Court finds Defendants have sufficiently demonstrated that Mr. Rupe's claims in this matter were dismissed for failure to state a claim.
For the reasons discussed above, the Court finds that Mr. Rupe's actions and appeals in Woodward and Tirapelle constitute three "strikes" under § 1915(g). Accordingly, Mr. Rupe's in forma pauperis status must be revoked; Mr. Rupe shall have thirty (30) days from the entry of this Order to pay the $350.00 filing fee. If Mr. Rupe fails to pay the filing fee within that time, this case will be dismissed.
IT IS HEREBY ORDERED:
1. Defendants' Motion to Revoke In Forma Pauperis Status under 28 U.S.C. [§] 1915(g), ECF No. 112, is GRANTED.
2. Plaintiff's in forma pauperis status, ECF No. 13, is REVOKED.
3. Plaintiff shall pay the $350.00 filing fee in full within thirty (30) days of the entry of this Order. Failure to pay the full filing fee within thirty days will result in dismissal of this action without prejudice.
4. The June 19, 2012 scheduling conference, see ECF No. 107, is STRICKEN. Defendants' responsibility to respond to Mr. Rupe's Motion for Class Certification, ECF No. 115, is STAYED until Mr. Rupe has complied with this Order.
IT IS SO ORDERED. The District Court Executive is directed to enter this Order and forward a copy to Mr. Rupe and defense counsel.
Edward F. Shea