United States District Court, Eastern District of California
FINDINGS AND RECOMMENDATION DENYING DEFENDANT VILLAGRANA’S MOTION TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS (ECF NO. 25)
MICHAEL J. SENGUNITED STATES MAGISTRATE JUDGE
Plaintiff Robert Duane Franklin is a state prisoner proceeding pro se and in forma pauperis (“IFP”) in this civil rights action filed pursuant to 42 U.S.C. § 1983. The action proceeds on a retaliation claim against Defendants Ruiz and Villagrana.
On September 10, 2014, Defendant Villagrana filed a motion to revoke Plaintiff’s IFP status. Plaintiff filed objections to the motion. Defendant Villagrana replied to the objections. Plaintiff filed a surrreply. The matter is deemed submitted for ruling. Local Rule 230(l).
I. LEGAL STANDARD
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.” 28 U.S.C. § 1915(g).
Defendant moves to revoke Plaintiff’s IFP status on grounds Plaintiff has three or more “strikes” under § 1915(g). When a prisoner has three or more strikes, the Court must revoke the prisoner's IFP status and give him an opportunity to pay the filing fee.Id. (“In no event shall a prisoner bring a civil action or appeal a judgment” if they meet the above criteria); accord 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, 393 F.3d at 1121. Defendant bears the burden of producing documentary evidence showing that plaintiff has three or more § 1915(g) strikes. Id. at 1120.
Notice may be taken of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue. Fed.R.Evid. 201; see also Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007), citing 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 two prior dismissed appeals referenced in the materials Defendant submitted. The Court analyzes each to see if it was dismissed as frivolous, malicious, or for failing to state a claim.
A. Franklin v. May, et al., U.S.D.C. E.D. Cal. Case No. 2:11-cv-1012
1. Trial Court Dismissal
This complaint was dismissed for “failure to state a claim” on March 27, 2012. (See ECF No. 25-3 at 33:9.)
Defendant points out the dismissal is on its face a strike under § 1915(g). Plaintiff concedes the dismissal but argues the trial court erred in dismissing the case for failure to state a claim.
The undersigned finds this dismissal was final prior to the date Plaintiff filed this action and ...