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Whittier Buchanan v. G. Clark

December 27, 2012

WHITTIER BUCHANAN,
PLAINTIFF,
v.
G. CLARK, ET AL.
DEFENDANTS.
(14) DAYS



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

FINDINGS AND RECOMMENDATION FOR GRANTING DEFENDANT CLARK'S MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (ECF No. 27) OBJECTIONS DUE WITHIN FOURTEEN

I. BACKGROUND

Plaintiff Whittier Buchanan ("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 November 19, 2009. (ECF No. 1.) The Court screened Plaintiff's Complaint and gave Plaintiff the option of either proceeding on his cognizable claim for excessive force under the Eighth Amendment against Defendants Clark and Erickson or filing an amended complaint. (ECF No. 15.) Plaintiff notified the Court that he was willing to proceed on his cognizable claim; accordingly, the other Defendants and claims were dismissed. (ECF Nos. 16, 17, & 18.) The Court then ordered service on Defendants Clark and Erickson. (ECF Nos. 19 & 21.) As of this date, only Defendant Clark has filed an executed waiver of service. (ECF No. 23.)

On May 1, 2012, Defendant Clark filed a motion to revoke Plaintiff's in forma pauperis status. (ECF No. 22.) The Court denied Defendant Clark's motion because Defendant Clark failed to provide the Court with sufficient information for it to determine if Plaintiff was subject to 28 U.S.C. § 1915. (ECF Nos. 26 & 30.)

Defendant Clark has since filed a second motion to revoke Plaintiff's in forma pauperis status. (ECF No. 27.) Plaintiff has filed an opposition. (ECF No. 28.) Defendant Clark has filed a reply. (ECF No. 29.) Pursuant to Local Rule 230(l) Defendant Clark's motion is now ready for ruling.

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. DISCUSSION

Defendant Clark argues that the following cases should count as strikes against Plaintiff: 1) Buchanan v. Terhune, et al., 4:99-cv-02076 (N.D. Cal. filed April 20, 1999), 2) Buchanan v. Harris, et al., 4:99-cv-3911 (N.D. Cal. filed August 20, 1999); 3) Buchanan v. Perez, et al., 4:99-cv-3990 (N.D. Cal. filed August 26, 1999); 4) Buchanan v. Chavez, et al., 4:99-cv-3991 (N.D. Cal. filed August 26, 1999); 5) Buchanan v. Williams, et al., 1:06-cv-1532 (E.D. Cal. filed October 31, 2006); 6) Buchanan v. Adkinson, et al., 4:03-cv-3678 (N.D. Cal. filed August 7, 2003); and 7) Buchanan v. Adkinson, et al., 4:03-cv-03737 (N.D. Cal. filed August 11, 2003).

The Court takes judicial notice of the above actions.

The following cases cited by Defendant Clark do not count as a dismissal pursuant to 28 U.S.C. § 1915(g): 1) Buchanan v. Terhune, et al., 4:99-cv-02076 (N.D. Cal. filed April 20, 1999) (dismissed as duplicative of another action), 2) Buchanan v. Harris, et al., 4:99-cv-3911 (N.D. Cal. filed August 20, 1999) (dismissed as duplicative of another action and under the "three strikes" provision of 28 U.S.C. § 1915), 3) Buchanan v. Adkinson, et al., 4:03-cv-03737 (N.D. Cal. filed August 11, 2003) (dismissed under the "three strikes" provision of 28 U.S.C. § 1915); and 4) Buchanan v. Adkinson, et al., 4:03-cv-3678 (N.D. Cal. filed August 7, 2003) (dismissed under the "three strikes" provision of 28 U.S.C. § 1915).

However, the remaining three cases cited by Defendant Clark do count as strikes pursuant to 28 U.S.C. § 1915(g): 1) Buchanan v. Chavez, et al., 4:99-cv-3991 (N.D. Cal. filed August 26, 1999) (dismissed for failure to state a claim and under the "three strikes" provision of 28 U.S.C. § 1915 on November 3, 1999); 2) Buchanan v. Williams, et al., 1:06-cv-1532 (E.D. Cal. filed October 31, 2006) (dismissed for failure to state a claim on October 24, 2008); and 3) Buchanan v. Perez, et al., 4:99-cv-3990 (N.D. Cal. filed August 26, 1999) (dismissed for failing to state a ...


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