United States District Court, E.D. California
GREGORY C. BONTEMPS, Plaintiff,
SOTAK, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendants move to revoke plaintiff's in forma pauperis status, and to declare him a three-strikes litigant, and to dismiss his complaint. ECF Nos. 74, 75. For the reasons stated below, it is recommended that the motion be granted.
Plaintiff alleges that defendants provided inadequate medical care during his incarceration in the Sacramento County Jail. ECF No. 24. Plaintiff was granted leave to proceed in forma pauperis ("IFP status") on February 1, 2010, ECF No. 9, and after a series of amended complaints and service issues, defendant Smith, joined by defendant Sotak, filed a motion to revoke that status. ECF Nos. 40, 49. The motion to revoke was denied based on a finding that Smith had not met his burden of producing evidence showing that plaintiff had three prior cases that fell within the "three strikes" language of 28 U.S.C. § 1915(g). ECF Nos. 59, 61. Defendant Sotak now returns with another motion to revoke plaintiff's IFP status, which defendant Smith joins. ECF Nos. 74, 75.
II. Motion to Revoke In Forma Pauperis Status
Defendants contend in their new motion that since the denial of the prior motion, "there have been four subsequent recommendations recommending that IFP status be revoked in plaintiff's other Eastern District cases, two of which have already been reviewed de novo by the District Judge and adopted in full." ECF No. 74-1 at 3. According to defendants, the four subsequent recommendations and orders all counted as strikes, the following three previous cases which this court did not count as strikes in ruling on the prior motion. Those cases are:
1. Bontemps v. Kramer et al., E.D. Cal. Case No. 2:06-cv-02483 ( Kramer I );
2. Bontemps v. Kramer et al., E.D. Cal. Case No. 2:06-cv-02580 ( Kramer II ); and
3. Bontemps v. Gray et al., E.D. Cal. Case No. 2:07-cv-00710 ( Gray ).
Defendants argue that the analysis in the four Eastern District cases counting Kramer I & II and Gray as strikes should be applied here. Although review of those cases reveals that the question of plaintiff's "three strikes" status is not as simple as defendants represent, the undersigned concludes that defendant Sotak has made the requisite showing that these cases should qualify as "strikes, " as discussed more fully below.
In two of the four recommendations in the other cases that defendants rely on, the district judge dismissed plaintiff's actions after determining him to be a three strikes litigant. Those cases are: Bontemps v. Bayne, et al., E.D. Cal. Case No. 2:12-cv-2791 ( Bayne ) and Bontemps v. Barnes, E.D. Cal. Case No. 2:12-cv-02250 ( Barnes ). In the other two cases, the court reached the opposite conclusion. In Bontemps v. Salinas, E.D. Cal. Case No. 2:12-cv-02185 ( Salinas ), the magistrate judge initially recommended that the motion to revoke IFP status be granted. Shortly thereafter, the Ninth Circuit issued its opinion in Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013), which clarified the circumstances under which a prior case may be deemed a "strike" under § 1915(g). In light of Knapp, District Judge Nunley returned the case to the magistrate judge for reconsideration. After analyzing the case under the reasoning of Knapp, the magistrate judge concluded that Kramer II could not be counted as a strike. She accordingly recommended that the motion to revoke IFP status be denied, and Judge Nunley adopted that recommendation.
In Bontemps v. Callison, E.D. Cal. Case No. 2:13-cv-0360 ( Callison ), the same magistrate judge also recommended, pre- Knapp, that plaintiff's IFP status be revoked. District Judge Mueller declined to adopt the recommendation, concluding that the dismissals in plaintiff's prior cases-where the complaint had been dismissed for failure to state a claim, plaintiff had been given leave to amend, plaintiff had failed to amend, and the case had consequently been dismissed-could not be considered strikes under § 1915(g) because they were dismissed for "failure to prosecute" rather than "failure to state a claim." Judge Mueller noted that the type of conduct displayed by plaintiff in his prior cases (filing an inadequate complaint and then failing to amend it) could be regulated through the court's discretionary authority to deny IFP status, but concluded that plaintiff's past litigation did not amount to abuse and consequently allowed the case to proceed.
Thus, the determinations of other judges regarding Bontemps's "three strikes" status, while helpful, is not entirely uniform and provides conflicting guideposts for addressing the circumstance presented here. In the two cases where plaintiff was found to be a three strikes litigant, the magistrate judges' recommendations (on which the final order was based) all pre-dated Knapp. And, as defense counsel is undoubtedly aware, there are differing opinions from the Eastern District of California regarding whether a case that is dismissed after a plaintiff fails to amend a complaint that had been found insufficient constitutes a strike under § 1915(g). See Bontemps v. Barnes, No. 2:12-cv-2249 DAD P, 2014 U.S. Dist. LEXIS 123595, at *4 (E.D. Cal. Sept. 3, 2014) ("The undersigned notes that a myriad of issues surrounding the determination of which dismissals count as a strike under § 1915(g) has, of late, consumed considerable judicial resources in both the trial and appellate courts."), and compare Bontemps v. Callison, No. S-13-0360 KJM AC P, 2014 U.S. Dist. LEXIS 67186, at *6-10 (E.D. Cal. May 15, 2014) (finding that prior dismissals for "failure to prosecute" after the complaint had been found not to state a claim, plaintiff had been given leave to amend, and plaintiff had failed to amend were not strikes under § 1915(g)) with Hudson v. Bigney, No. 2:11-cv-3052 LKK AC P, 2013 U.S. Dist. LEXIS 167444, at *7 (E.D. Cal. Nov. 22, 2013) ("A dismissal for failure to prosecute an action constitutes a strike when it is based upon the plaintiff's failure to file an amended complaint after the original complaint is dismissed for failure to state a claim.") (adopted in full by 2014 U.S. Dist. LEXIS 10539 (E.D. Cal. Jan. 28, 2014)). The Ninth Circuit has addressed this issue directly only in a non-precedential unpublished opinion, upholding a district court order that found such a case to be a strike. Baskett v. Quinn, 225 F.Appx. 639, 640 (9th Cir. 2007); see Ninth Circuit Rule 36-3(a) ("Unpublished dispositions and orders of this Court are not precedent[.]").
The court will accordingly review the cases submitted by defendants as purported strikes under the language of § 1915(g) and the guidance provided by Knapp and other ...