United States District Court, E.D. California
DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. Plaintiff seeks relief
pursuant to 42 U.S.C. § 1983 and has requested leave to
proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
This proceeding was referred to this court by Local Rule 302
pursuant to 28 U.S.C. § 636(b)(1). For the reasons set
forth below, this court finds plaintiff fails to meet the
standards to proceed in forma pauperis and must pay the
filing fee if he wishes to prosecute this action.
FORMA PAUPERIS STATUTE
Prison Litigation Reform Act of 1995 (“PLRA”)
permits a federal court to authorize the commencement and
prosecution of any suit without prepayment of fees by a
person who submits an affidavit indicating that the person is
unable to pay such fees. However,
[i]n no event shall a prisoner bring a civil action or appeal
a judgment in a civil action or proceeding 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).
“three strikes rule” was part of “a variety
of reforms designed to filter out the bad claims [filed by
prisoners] and facilitate consideration of the good.”
Coleman v. Tollefson, 135 S.Ct. 1759, 1762 (2015)
(quoting Jones v. Bock, 549 U.S. 199, 204 (2007)).
If a prisoner has “three strikes” under §
1915(g), the prisoner is barred from proceeding in forma
pauperis unless he meets the exception for imminent danger of
serious physical injury. See Andrews v. Cervantes,
493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception,
the complaint of a “three-strikes” prisoner must
plausibly allege that the prisoner was faced with imminent
danger of serious physical injury at the time his complaint
was filed. See Williams v. Paramo, 775 F.3d 1182,
1189 (9th Cir. 2015); Andrews, 493 F.3d at 1055.
PLAINTIFF ACCRUED THREE STRIKES?
review of the actions filed by plaintiff in this court
reveals that plaintiff is subject to 28 U.S.C. §1915(g)
and is precluded from proceeding in forma pauperis unless
plaintiff was, at the time the complaint was filed, under
imminent danger of serious physical injury. The court has
found evidence on the court record of three § 1915(g)
“strikes” against plaintiff, which were all
entered before this action was brought by plaintiff on
October 3, 2016. The court takes judicial notice of the
following lawsuits previously filed by
Langston v. Finn, 2:10-cv-02196-EFB (E.D. Cal).
March 2, 2011, the magistrate judge dismissed plaintiff's
claim that he was deprived of time credits as barred by
Heck v. Humphrey, 512 U.S. 477, 481 (1994) and found
plaintiff failed to state a claim for a due process violation
based on his erroneous release. This court recognizes that a
dismissal under Heck does not necessarily count as a
strike. In Washington v. Los Angeles Cty. Sheriff's
Dep't, 833 F.3d 1048, 1055 (9th Cir. 2016), the
Ninth Circuit Court of Appeals held that a Heck
dismissal does not categorically count as a dismissal for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), and thus does not necessarily count as a
strike under § 1915(g). The Washington court
held that a Heck dismissal constitutes a Rule
12(b)(6) dismissal “when the pleadings present an
‘obvious bar to securing relief' under
Heck.” Id. at 1056 (quoting
ASARCO, LLC v. Union Pac. R.R. Co., 765 F.3d 999,
1004 (9th Cir. 2014)). The court clarified that holding by
explaining that this standard would apply to count as a
strike only where the entire action was dismissed for a
qualifying reason under the PLRA. Id. at 1055, 1057
(citing Andrews v. Cervantes, 493 F.3d at 1054).
Washington, the court considered whether one of
plaintiff Washington's prior proceedings constituted a
strike under § 1915(g). In that prior § 1983
proceeding, Washington sought a “recall” of his
allegedly unlawful sentence enhancement, essentially an
injunction, and damages for his additional year in prison
based on the enhancement. Id. at 1057. The
Washington court found that the request for
injunctive relief sounded in habeas. Id. A habeas
action is not a “civil action” within the purview
of the PLRA and its dismissal does not trigger a strike.
Id. (citing Andrews v. King, 398 F.3d at
1122-23). Therefore, the dismissal of Washington's prior
suit did not amount to a strike because “the entire
action was not dismissed for one of the qualifying reasons
enumerated by” § 1915(g). Id.
reviewing plaintiff's complaint and its attachments in
Langston v. Finn, the court found plaintiff's
complaint Heck-barred on screening. Because exhibits
to a pleading are considered part of that pleading under
Federal Rule of Civil Procedure 10(c), the court found a
Heck bar based only on the allegations of the
complaint. Further, a review of plaintiff's first amended
complaint in Langston v. Finn shows that plaintiff
did not seek relief that sounded in habeas. He sought only
damages. Accordingly, based on the standards set out in
Washington, the dismissal of Langston v.
Finn amounts to a strike.
Langston v. Enkoji, ...