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Langston v. Blackford

United States District Court, E.D. California

May 25, 2017

WALTER SHANE LANGSTON, Plaintiff,
v.
J. BLACKFORD, Defendant.

          ORDER

          DEBORAH BARNES, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         IN FORMA PAUPERIS STATUTE

         The 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).

         This “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.

         HAS PLAINTIFF ACCRUED THREE STRIKES?

         A 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.[1] The court takes judicial notice of the following lawsuits previously filed by plaintiff.[2]

         1. Langston v. Finn, 2:10-cv-02196-EFB (E.D. Cal).

         On 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).

         In 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.

         After 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.

         2. Langston v. Enkoji, ...


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