United States District Court, E.D. California
February 13, 2014
JERRY W. BAKER, Plaintiff,
SACRAMENTO COUNTY JAIL, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
DALE A. DROZD, Magistrate Judge.
On April 1, 2013, plaintiff, a Sacramento County Jail inmate proceeding pro se, filed his complaint in this civil rights action brought pursuant to 42 U.S.C. § 1983. However, plaintiff neither paid the required filing fee of $350.00 nor submitted an application to proceed in forma pauperis. See 28 U.S.C. §§ 1914(a) & 1915(a). Rather, on May 29, 2013, plaintiff filed a motion styled as a "Motion Opposing Denial of Indigent Inmate Status/And Prepayment of Filing Fee." (ECF No. 4) Therein, plaintiff appears to argue that he should not be denied in forma pauperis status in this action based upon the dismissal of prior actions he has filed in this court because those dismissals were not based upon a finding of frivolousness by the court. (Id.) In addition, plaintiff suggests that he filed notices of change of address but was nonetheless not served with orders dismissing those prior complaints with leave to amend. (Id.) Finally, plaintiff contends that because all of his prior actions named Solano County as the defendant, they should have been considered by the court as a single action. (Id.) Because the arguments advanced by plaintiff in his motion are unpersuasive, he will be required to pay the filing fee in order to proceed with this civil rights action.
28 U.S.C. § 1915(g)
The federal in forma pauperis statute includes a limitation on the number of actions in which a prisoner can proceed in forma pauperis.
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under [§ 1915] 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). "[T]he plain language of § 1915(g) requires that the court look at cases dismissed prior to the enactment of the [Prison Litigation Reform Act] to determine when a prisoner has used his three strikes." Rodriguez v. Cook , 169 F.3d 1176, 1181 (9th Cir. 1999). In determining whether a dismissal counts as a "strike" under § 1915(g) the reviewing court should carefully evaluate, and make an independent assessment of, the dismissing court's action and the reasons underlying it. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013); Andrews v. King , 398 F.3d 1113, 1121 (9th Cir. 2005).
Where a court denies a prisoner's application to file an action without prepayment of fees on the grounds that the submitted complaint is frivolous, malicious or fails to state a claim upon which relief may be granted, the complaint has been "dismissed" for purposes of § 1915(g). O'Neal v. Price , 531 F.3d 1146, 1153 (9th Cir. 2008). Moreover, even "a dismissal without prejudice counts as a strike, so long as the dismissal is made because the action is frivolous, malicious, or fails to state a claim." Id. at 1154. Finally, where a complaint has been dismissed for both failure to state a claim and other grounds but it is clear that the failure to state a claim was "a fully sufficient condition... for a dismissal with prejudice, " that dismissal constitutes a strike for purposes of § 1915(g). Id. at 1155-56. See also Turner v. Colon, No. 2:11-cv-2343 AC P, 2013 WL 2156566, at *1 (E.D. Cal. May 17, 2013)
Here, plaintiff suffered his first strike for purposes of § 1915(g) on March 17, 2009, when this court dismissed Baker v. Solano County Jail, et al., Case No. 2:08-cv-1034 BHS without prejudice, specifically for failure to state a claim. (ECF No. 13.) Plaintiff suffered a second strike on March 21, 2011, when this court dismissed Baker v. Todd, et al., Case No. 2:10-cv-1827 MCE EFB, again specifically for failure to state a claim. (ECF No. 12.) Plaintiff's third strike occurred when, on September 18, 2012, this court dismissed Baker v. Jones, et al., Case No. 2:12-cv-0404 WBS EFB specifically for failure to prosecute and failure to state a claim. (ECF No. 10.) Finally, the court notes that, were it necessary, plaintiff suffered yet another strike for purposes of § 1915(g) on October 24, 2012 when Baker v. Marsh, Case No. 2:12-cv-0555 GEB EFB was dismissed specifically for failure to state a claim and failure to prosecute. (ECF No. 12.)
Plaintiff's argument based upon his contention that "[t]he court never dismissed any of my claims as frivilous [sic]" (ECF No. 4) is misplaced. A strike occurs under § 1915(g) whenever a prisoner while incarcerated or detained brings an action or appeal that is dismissed as "frivolous, malicious or as failing to state a claim upon which relief may be granted." (emphasis added) Here, all of the dismissals summarized above were based specifically on plaintiff's failure to state a claim.
Plaintiff's other arguments also miss the mark. The court has reviewed the four complaints in the prior cases that were dismissed for failure to state a claim. While there are some common defendants named in more than one of those complaints and some common types of claims (denial of access to the courts) in some of them, each complaint is based upon different and unconnected incidents that plaintiff alleged took place in 2008, 2010 and 2012. Thus, each was clearly a separate action. In his 2008 action plaintiff filed a belated second amended complaint which the assigned District Judge nonetheless reviewed and found that it too failed to state a claim. (ECF No. 17.) In his 2010 action, plaintiff never filed a notice of change of address with this court. With respect to the 2012 dismissals, there is nothing on the court docket in those actions suggesting that plaintiff did not receive any of the findings and recommendations or orders issued by the court. Finally, and in any event, all four cases were dismissed for failure to state a claim, thus constituting a strike under § 1915(g). Even if dismissal for failure to prosecute was somehow inappropriate due to confusion over plaintiff's address of record, it would be of no consequence for the analysis required under § 1915(g).
There is an exception to the three-strike bar of § 1915(g), which allows a prisoner to use in forma pauperis status to bring a civil action despite three prior dismissals where the prisoner is under imminent danger of serious physical injury. See Andrews, 493 F.3d at 1056-57. In his complaint now before this court, plaintiff complains merely that he was denied due process and the right to a fair hearing in connection with a jail disciplinary charge on which he was found guilty. In this regard, plaintiff has not alleged that he was "under imminent danger of serious physical injury" when he filed this action. Accordingly, the imminent danger exception under 28 U.S.C. § 1915(g) is not available to plaintiff in connection with this action.
For the reasons set forth above, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's May 29, 2013 motion styled as a "Motion Opposing Denial of Indigent Inmate Status/And Prepayment of Filing Fee" (ECF No. 4) be denied; and
2. This action be dismissed without prejudice, unless plaintiff pays the full statutory filing fee ($350.00) by the deadline for the filing of objections to these findings and recommendations. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst , 951 F.2d 1153 (9th Cir. 1991).