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Thomas v. Ellis

United States District Court, N.D. California

February 26, 2015

EDWARD THOMAS, Plaintiff,
v.
GERALD ELLIS, et al., Defendants.

ORDER REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS AND DISMISSING COMPLAINT

CLAUDIA WILKEN, District Judge.

Plaintiff Edward Thomas, a state prisoner currently incarcerated at Corcoran State Prison, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights by prison officials and medical staff at Salinas Valley State Prison (SVSP), where he was formerly incarcerated. On April 8, 2013, the Court granted Plaintiff's motion to proceed in forma pauperis (IFP). On the same day, the Court found Plaintiff had stated cognizable claims for deliberate indifference to his serious medical needs based on the denial of pain medication and directed that the complaint be served on Defendants.[1] Subsequently, Defendants filed a motion for summary judgment.

On October 29, 2014, the Court issued an order directing Defendants to address whether Plaintiff's IFP status should be revoked pursuant to 28 U.S.C. § 1915(g) based on its ruling in another case filed by Plaintiff, Thomas v. Sepulveda, 2014 WL 5409064, *2-4 (N.D. Cal.), that he had three previous cases that counted as strikes under 28 U.S.C. § 1915(g). In their responsive brief, Defendants argue that Plaintiff's IFP status should be revoked because he is a three-strike litigant under § 1915(g) and his complaint does not allege that he is in imminent danger. Plaintiff has filed an "objection" to Defendants' response and a surreply.

LEGAL STANDARD

A prisoner may not bring a civil action IFP under 28 U.S.C. § 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).

For purposes of a dismissal that may count under § 1915(g), the phrase "fails to state a claim on which relief may be granted" parallels the language of Federal Rule of Civil Procedure 12(b)(6) and carries the same interpretation; the word "frivolous" refers to a case that is "of little weight or importance: having no basis in law or fact, '" and the word "malicious" refers to a case "filed with the intention or desire to harm another.'" Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (citation omitted). Only cases within one of these three categories can be counted as strikes for § 1915(g) purposes, so the mere fact that a plaintiff has filed many cases does not alone warrant dismissal under § 1915(g). Id. Rather, dismissal of an action under § 1915(g) should only occur when, "after careful evaluation of the order dismissing an [earlier] action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim." Id. A dismissal under § 1915(g) means that a prisoner cannot proceed with his action IFP under § 1915(g), but he still may pursue his claims if he pays the full filing fee at the outset of the action. Tierney v. Kupers, 128 F.3d 1310, 1311 (9th Cir. 1997).

DISCUSSION

I. Plaintiff's Strikes

Based on the Court's finding in Thomas v. Sepulveda, 2014 WL 5409064 (N.D. Cal.), that Plaintiff is a three strikes litigant under § 1915(g), Defendants argue that he is collaterally estopped from arguing that he does not have three strikes. In Sepulveda, the Court found the following cases qualified as strikes under § 1915(g): (1) Thomas v. Terhune, case no. 03-cv-5467 (E.D. Cal.) (complaint dismissed for failure to state a claim on which relief may be granted); (2) dismissal of the appeal in Thomas v. Terhune, case no. 06-1501 (9th Cir. 2006) (Ninth Circuit determined Plaintiff not entitled to IFP on appeal, Plaintiff did not pay filing fee and appeal dismissed for failure to prosecute); and (3) denial of the appeal in Thomas v. Lamarque, case no. 07-16437 (9th Cir. 2007) (Ninth Circuit determined appeal not taken in good faith, revoked Plaintiff's IFP status and dismissed appeal for failure to prosecute after Plaintiff failed to pay filing fee).

For collateral estoppel to bar relitigation of an issue, the following elements must be satisfied: (1) the issue at stake must be identical to the one alleged in the previous litigation; (2) the issue must have been actually litigated by the party against whom preclusion is asserted; and (3) the determination of the issue in the previous case must have been a critical and necessary part of the judgment. Trevino v. Gates, 99 F.3d 911, 923 (9th Cir. 1996).

A comparison of this case with Thomas v. Sepulveda shows all of the collateral estoppel requirements are satisfied. Plaintiff was the adverse party in Sepulveda, and the parties in that case litigated the same issue that is currently before this Court, that is, whether Plaintiff brought at least three actions or appeals that were dismissed on the ground that they were frivolous, malicious or failed to state a claim for relief. Sepulveda, 2014 WL 5409064, at *1-2. That determination was a critical and necessary part of the judgment because it directly resulted in the dismissal of Plaintiff's action. Id. at *5. The judgment in Sepulveda is final; on January 14, 2015, Plaintiff's appeal was dismissed because it was "so insubstantial as to not warrant further review." In re Edward Thomas, No. 09-80085 (9th Cir. 2015).

Furthermore, in Sepulveda, the Court already determined that Plaintiff was collaterally estopped from challenging his three-strike status based on the findings in two other previous district court cases, Thomas v. Felker, No. 09-cv-2486 FEC-CKD-P (E.D. Cal.), and Thomas v. Beutler, No. 10-cv-1300 MCE-CKD (E.D. Cal.). Sepulveda, 2014 WL 5409064, at *3-4. Therefore, collateral estoppel bars Plaintiff from litigating whether the three cases addressed in Sepulveda qualify as strikes under § 1915(g).

Defendants also submit that a fourth case qualifies as a strike, Thomas v. Lamarque, No. C 04-4339 VRW (N.D. Cal.), where, on initial review, the court found that the allegations in Plaintiff's complaint, at most, constituted negligence, but not deliberate indifference to his health, and dismissed the complaint for failure to state a claim for relief under § 1983. See Defs.' Request for Judicial Notice (RJN), Ex. 1 at 001-007.[2] A dismissal for failure to state a claim for deliberate indifference where the allegations might state a claim for negligence qualifies as a strike under § 1915(g). See Fahie v. Mercy Hosp., 2011 WL 355822, *1 (E.D. Cal.); Eagleman v. Sandstrom, 2013 WL 2350377, *3 (D. Mont.). ...


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