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Morris v. Bradford

United States District Court, Ninth Circuit

November 25, 2013

LEON E. MORRIS, Plaintiff,
v.
BRADFORD et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

DALE A. DROZD, Magistrate Judge.

Plaintiff is a state prisoner proceeding pro se and in forma pauperis ("IFP") with this civil rights action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to revoke plaintiff's IFP status pursuant to 28 U.S.C. § 1915(g) and to dismiss the complaint pursuant to Federal Rules of Civil Procedure 11 and 18. Plaintiff has opposed the motion.

BACKGROUND

Plaintiff is proceeding on his first amended complaint. When the court screened plaintiff's amended complaint, the court found that the complaint appeared to state cognizable claims for retaliation under the First Amendment against defendants Bradford, Hamad, Pena, Aguyo, Boatright, Mooghaddan, Hernandez, Brown, Cruz, Crawford, Low, Brewer, and Guffee. The court further found that plaintiff's amended complaint appeared to state cognizable claims for deliberate indifference to his serious medical needs in violation of the Eighth Amendment against defendants Aguyo, Boatright, and Mooghaddan. (See Doc. No. 13)

ANALYSIS

I. Motion to Revoke Plaintiff's IFP Status

Defendants move to revoke plaintiff's IFP status pursuant to the three-strikes rule of 28 U.S.C. § 1915, arguing that courts have dismissed three or more of plaintiff's actions or appeals as frivolous, malicious, or for failure to state a claim. (Defs' Mot. at 7-10 & Req. for Judicial Notice Exs. A-G.) The court disagrees and will address each of the six lawsuits and appeals which defense counsel characterizes as "strikes":

(1) Morris v. Duncan, No. C 02-0928 MJJ (PR) (N.D. Cal. May 3, 2002), dismissed for failure to state a cognizable claim for relief. (Defs.' RJN Exs. A & B.) The court finds that this case constitutes a strike for purposes of § 1915(g).
(2) Morris v. Silvers, No. C 98-1381 BTM (LAB) (S.D. Cal. July 29, 1998), dismissed on Younger abstention and ripeness grounds. (Defs.' RJN Exs. B & C.) The court finds that this case does not constitute a strike for purposes of § 1915(g). See Moore v. Maricopa Cnty. Sheriff's Office , 657 F.3d 890, 894 (9th Cir. 2011) ("[W]e conclude that Congress intended for the three-strikes rule to count 12(b)(6) dismissals but not 12(b)(1) dismissals."). The abstention and ripeness doctrines go to the court's subject matter jurisdiction and not whether a claim is cognizable for purposes of Rule 12(b)(6).
(3) Morris v. Lushia, No. C 00-55330 (9th Cir. Mar. 27, 2000), dismissed because the order plaintiff challenged was neither final nor appealable. (Defs.' RJN Exs. B & D.) The court finds that this case does not constitute a strike for purposes of § 1915(g). See Silva v. Di Vittorio , 658 F.3d 1090, 1099 (9th Cir. 2011) (dismissal of an appeal "must be final before it counts as a strike' for § 1915(g) purposes."). Plaintiff's premature appeal in this case was not final.
(4) Morris v. Lushia, No. C 00-56600 (9th Cir. Sept. 27, 2002), dismissed because plaintiff did not pay the filing fee (i.e., for "failure to prosecute"). (Defs.' RJN Exs. B & E.) The court finds that this case does not constitute a strike for purposes of § 1915(g). See Andrews v. King , 398 F.3d 1113, 1122 (9th Cir. 2005). Under these circumstances, failure to prosecute an appeal is not a qualifying ground under § 1915(g).
(5) Morris v. Woodford, No. C 06-15869 (9th Cir. May 5, 2006), the Ninth Circuit submitted plaintiff's appeal to the screening panel and it summarily affirmed the judgment. (Defs.' RJN Ex. F.) Although another Magistrate Judge in this court has found summary affirmance on appeal constitutes a strike, see Case No. 2:09-cv-2486 GEB CKD P, the undersigned is not persuaded based on defendants' motion and exhibits that summary affirmance in this particular prior action brought by plaintiff is the equivalent of the Ninth Circuit dismissing the appeal on the grounds that the appeal was frivolous, malicious, or failed to state a claim. Moreover, even if summary affirmance and this prior action brought by plaintiff constitute a strike, defendants have not identified three strikes by plaintiff. At most, defendants have identified two even if counting this summary affirmance as one.
(6) Morris v. Woodford, No. C-08-15965 (9th Cir. Apr. 23, 2008), dismissed because plaintiff did not pay the filing fee (i.e., for "failure to prosecute"). (Defs.' RJN Ex. G.) The court finds that this case does not constitute a strike for purposes of § 1915(g). See Andrews , 398 F.3d at 1122. As noted above, under these circumstances, failure to prosecute an appeal is not a qualifying ground under § 1915(g). In short, defendants have not demonstrated that plaintiff has incurred three strikes under

28 U.S.C. § 1915 prior to filing this action.[1] Accordingly, the court will recommend that defendants' motion to revoke ...


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