Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jesse T. Moten v. Darrel G. Adams

June 28, 2012

JESSE T. MOTEN,
PLAINTIFF,
v.
DARREL G. ADAMS, ET AL.
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION TO GRANT DEFENDANT GONZALES' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (ECF No. 77) OBJECTIONS DUE WITHIN FOURTEEN DAYS

I. BACKGROUND

Plaintiff Jesse T. Moten ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

Plaintiff initiated this action on June 27, 2007. (ECF No. 1.) Plaintiff filed a Second Amended Complaint on March 11, 2011. (ECF No. 55.) The Court screened Plaintiff's Second Amended Complaint pursuant to 28 U.S.C. § 1915A, and dismissed all of Plaintiff's claims and Defendants except for Plaintiff's excessive force claim against Defendant Gonzales. (ECF No. 56-59.) Defendant Gonzales has been served in this action. (ECF No. 76.)

In lieu of an answer, on December 12, 2011, Defendant Gonzales filed a motion to revoke Plaintiff's in forma pauperis status on the ground that Plaintiff is a "three-strikes" litigant. (ECF No. 77.) After reviewing the motion, the Court ordered Defendant Gonzales to produce an additional document in connection with his motion, and Defendant Gonzales complied. (ECF Nos. 80 & 81.)*fn1 Plaintiff's time for filing an opposition to Defendant Gonzales' motion has long passed. Local Rule 230. Defendant Gonzales' motion is now before the Court.

II. LEGAL STANDARD

28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides that

[i]n no event shall a prisoner bring a civil action ... 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.

"[I]f the language of a statute is clear, we look no further than that language in determining the statute's meaning," unless "what seems to be the plain meaning of the statute ... lead[s] to absurd or impracticable consequences." Seattle--First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted). The language of section 1915(g) is clear: a dismissal on the ground that an action is frivolous, malicious, or fails to state a claim counts as strike. Adherence to the language of section 1915(g) by counting as strikes only those dismissals that were made upon the grounds of frivolity, maliciousness, and/or failure to state a claim does not lead to absurd or impracticable consequences. Federal courts are well aware of the existence of section 1915(g). If a court dismisses an action on the grounds that it is frivolous, malicious, and/or fails to state a claim, the court should state as much. Such a dismissal may then be counted as a strike under 1915(g).

III. ANALYSIS

Defendant Gonzales argues that the following cases should count as strikes: 1) Moten v. Renwick, et al., E.D. Cal. 98-CV-0118, 2) Moten v. Garcia, N.D. Cal. 03-CV-01581, 3) Moten v. Garcia, et al., 9th Cir. 05-56046, 4) Moten v. Small, et al., S.D. Cal. 99-CV-2409, 5) Moten v. Small, et al., 9th Cir. 03-56731, 6) Moten v. Small, et al., 9th Cir. 04-55692, 7) Moten v. Giurbino, et al., E.D. Cal. 04-CV-1891, 8) Moten v. Gomez, et al., E.D. Cal. 03-CV-1729, 9) Moten v. Gomez, at al., 9th Cir. 05-17037, 10) Moten v. Gomez, et al., 9th Cir. 06-17020, 11) Moten v. Adams, E.D. Cal. 06-CV-1155, 12) Moten v. Yale, (Cal. Super. Ct. Kings County, No. 08C 0068), and 13) Moten v. Maylin, et al., (Cal. Super. Ct. Kings County, No. 08CV0906).Defendant Gonzales also points out that none of Plaintiff's forty-three lawsuits in the Ninth Circuit, Eastern District of California, and Central District of California have been decided in his favor.

The Court takes judicial notice of the above actions.

The following cases cited to by Defendant Gonzales do not count as a dismissal pursuant to 28 U.S.C. § 1915(g): Moten v. Garcia, N.D. Cal. 03-CV-01581 (dismissed for incorrect venue), Moten v. Garcia, et al., 9th Cir. 05-56046 (Appeal dismissed for failure to prosecute as a result of failing to pay filing fee), Moten v. Small, et al., S.D. Cal 99-CV-2409 (motion to dismiss granted for failure to state a claim and failure to exhaust administrative remedies), Moten v. Small, et al., 9th Cir. 03-56731 (appeal dismissed for failure to prosecute), Moten v. Small, et al., 9th Cir. 04-55692 (appeal dismissed for failure to prosecute), Moten v. Gomez, et al., 9th Cir. 05-17037 (appeal dismissed for failure to prosecute), Moten v. Gomez, et al., 9th Cir. 06-17020 (appeal dismissed for failure to prosecute), Moten v. Adams, E.D. Cal. 6-CV-1155 (dismissed for failure to exhaust administrative remedies), Moten v. Yale (Cal. Super. Ct. Kings County, No. 08C 0068)(Plaintiff declared to be a vexatious litigant), and Moten v. Maylin, et al. (Cal. Super. Ct. Kings County, No. 08CV0906)(Plaintiff declared to be vexatious litigant).

However, it appears that the other three cases cited to by Defendant Gonzales would count as strikes pursuant to 28 U.S.C. § 1915(g). According to the docket entry for Moten v. Renwick, et al., E.D. Cal. 98-CV-0118, this action was dismissed for failure to state a claim on June 12, 2001. This is a dismissal pursuant to 28 U.S.C. § 1915(g). According to the docket entry for Moten v. Giurbino, et al., E.D. Cal. 04-CV-1891, this action was dismissed for failure to state a claim on November 24, 2004. This is a dismissal pursuant to 28 U.S.C. § 1915(g). According to the docket entry for Moten v. Gomez, et al., E.D. Cal. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.