Jenkins v. Bonds

          ORDER AND FINDINGS AND RECOMMENDATIONS

          EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Defendant has filed a motion for an order revoking plaintiff’s in forma pauperis status and requiring plaintiff to post a security. ECF No. 20. For the following reasons, the motion must be denied.

         I. Background

         This action proceeds on plaintiff’s first amended complaint, in which plaintiff alleges that defendant Bonds, a correctional officer, subjected him to excessive force when he handcuffed plaintiff much too tightly and then dragged him through freezing outdoor temperatures for a quarter of a mile. ECF No. 14 at 3. On April 29, 2015, the court granted plaintiff leave to proceed in forma pauperis. ECF No. 11. Defendant moves to revoke that status and require plaintiff to post a security in order to continue with the case. ECF No. 20.

         II. The Motion to Revoke IFP Status

         28 U.S.C. § 1915 authorizes federal courts to allow certain litigants to sue without prepayment of the ordinary filing fee (commonly referred to as “proceeding in forma pauperis”). These litigants must show that they are unable to pay the fee. 28 U.S.C. § 1915(a)(1). Prisoners face additional barriers to proceeding in forma pauperis. One such barrier, known as the “three strikes” provision, provides: “In 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); Andrews v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir.2005). Prior cases that fall within the categories described by § 1915(g) are known as “strikes.” Thus, under § 1915(g), a prisoner with three or more strikes (and who was not under imminent danger at the time of filing the complaint) may not proceed in forma pauperis and must instead pay the full filing fee up front. Andrews v. Cervantes, 493 F.3d 1047, 1052 (9th Cir. 2007).

         When a defendant challenges a prisoner’s right to proceed in forma pauperis, the defendant bears the burden of producing sufficient evidence to establish that the plaintiff has sustained three strikes. Andrews, 398 F.3d at 1116, 1120. To discharge this burden, the defendant must produce court records or other documentation that will allow the district court to determine that three prior cases were dismissed for the reasons set forth in § 1915(g). Once the defendant has done so, the burden shifts to the plaintiff to persuade the court that § 1915(g) should not apply. Id.

         The Ninth Circuit has cautioned district courts to look closely at dismissal orders and any other relevant information in determining whether a case was dismissed for one of the reasons listed in § 1915(g). Andrews, 398 F.3d at 1121. The court may deny in forma pauperis status only when, after this careful evaluation, the court determines that the prior actions were dismissed because they were frivolous, malicious or failed to state a claim. Id.

         Defendant identifies three cases which he claims are strikes within the meaning of § 1915(g). If any of these three cases are not strikes, defendant’s motion fails. And, indeed, one of the cases proffered by defendant does not qualify as a strike: Jenkins v. Hill, E.D. Cal. Case No. 2:11-cv-2031-GEB (hereinafter “Hill”).

         Hill was a federal habeas petition filed by plaintiff to challenge the California Board of Prison Hearings’ decision to deny him parole, an alleged sentencing-computation error by the Board, and their application of California’s Proposition 9 (“Marsy’s Law”) to his case. Case No. 2:11-cv-02031-GEB-KJN, ECF No. 1.^[1] Defendant concedes that, ordinarily, “dismissed habeas petitions do not count as strikes under § 1915(g).” Andrews v. King, 398 F.3d at 1122. Only where a habeas petition is really a civil rights action intentionally mislabeled as a habeas petition “so as to avoid the penalties imposed by 28 U.S.C. § 1915(g)” may a habeas petition be considered as a potential strike. Id. at 1122 n.12.

         Defendant argues that the claims plaintiff raised in Hill should really have been brought in a civil rights action instead of a habeas action because his success on those claims would not have necessitated his earlier release. What defendant fails to show is that plaintiff had any intention of avoiding the application of § 1915(g) in filing Hill as a habeas petition instead of a § 1983 action. Instead, plaintiff raised claims in that case that straddle the still poorly-defined barrier between § 1983 and the federal habeas statute and, at the time he filed the petition, were considered by many courts to be proper habeas claims. See Jackson v. Swarthout, No. CIV S-10-494 GEB EFB, 2011 U.S. Dist. LEXIS 97713 (July 31, 2011). Unsurprisingly, the jurists who actually reviewed plaintiff’s habeas petition did not dismiss it because it should have been brought under § 1983. Instead, Magistrate Judge Newman and District Judge Burrell considered the merits of the claims. ECF No. 20-3 at 34-46. Because defendant has provided the court with nothing that suggests that plaintiff filed Hill as a habeas petition as an intentional subterfuge to avoid the application of § 1915(g), the court may not count this dismissed habeas petition as a strike. See, e.g., Chatman v. Frazier, Case No. 2:13-cv-1605 KJM KJN P, 2016 U.S. Dist. LEXIS 28022, at *6-7 (E.D. Cal. Mar. 4, 2016) (declining to count as a strike a habeas petition that was dismissed because it did not clearly implicate the duration of confinement where the dismissal order did not indicate that the petition had been brought in bad faith or was intentionally mislabeled to avoid application of § 1915(g)); Hollis v. Gorby, Case No. CIV S-09-1627 DAD (TEMP) P, 2011 U.S. Dist. LEXIS 76925, at *4-5 (E.D. Cal. July 14, 2011) (declining to count as a strike a dismissed habeas petition where the dismissal order did not include a finding that the case was brought under the habeas statute to avoid some penalty associated with § 1983 (such as the § 1915(g) three strikes provision) and there was nothing else suggesting such subterfuge).

         III. The Motion to Require Plaintiff to Post Security

         Defendant additionally asks that the court deem plaintiff a vexatious litigant pursuant to Local Rule 151(b) and require that he post a security before the case may continue. Under Eastern District of California Local Rule 151(b),

[T]he Court may at any time order a party to give a security, bond, or undertaking in such amount as the Court may determine to be appropriate. The provisions of Title 3A, part 2, of the California Code of Civil Procedure, relating to vexatious litigants, are hereby adopted as a procedural Rule of this Court on the basis of which the Court may order the giving of a ...