United States District Court, E.D. California
KASEY F. HOFFMANN, Plaintiff,
STU SHERMAN, et al., Defendants.
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
PLAINTIFF'S IN FORMA PAUPERIS STATUS BE REVOKED AND THAT
PLAINTIFF BE REQUIRED TO PAY THE $400.00 FILING FEE (ECF NOS.
2 & 9)
Hoffmann (“Plaintiff”) is a state prisoner
proceeding pro se and in forma pauperis
with this civil rights action filed pursuant to 42 U.S.C.
Court finds that Plaintiff had “three strikes”
before filing this action and was not in imminent danger of
serious physical injury at the time he filed the action, the
Court will recommend that Plaintiff's in forma
pauperis be revoked and that Plaintiff be required to
pay the $400 filing fee if he wants to proceed with this
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
U.S.C. § 1915 governs proceedings in forma
pauperis. Section 1915(g) provides that “[i]n 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.”
determining whether a case counts as a “strike, ”
“the reviewing court looks to the dismissing
court's action and the reasons underlying it….
This means that the procedural mechanism or Rule by which the
dismissal is accomplished, while informative, is not
dispositive.” Knapp v. Hogan, 738 F.3d 1106,
1109 (9th Cir. 2013) (internal citation omitted). See
also O'Neal, 531 F.3d 1146, 1153 (9th Cir. 2008)
(quoting Yourish v. Cal. Amplifier, 191 F.3d 983,
986-87 (9th Cir. 1999) (alteration in original) (“no
‘particular formalities are necessary for an order that
serves as the basis of [an involuntary]
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
initiated this action on February 7, 2018. (ECF No. 1). The
Court finds that, prior to this date, Plaintiff had three
cases dismissed that count as “strikes.”
Court takes judicial notice of Hoffman v. Pulido
(“Pulido”),  E.D. CA, Case No.
1:18-cv-00209, ECF Nos. 7, 10, & 13. Judge Anthony W.
Ishii examined Plaintiff's prior filings, and concluded
that Plaintiff has filed three cases that constitute
“strikes” under the “three-strike”
rule in 28 U.S.C. § 1915(g). Id. Upon careful
review of this decision, as well as the cases that Judge
Ishii found to constitute strikes, the Court finds Judge
Ishii's analysis to be properly supported by existing
law. Thus, the Court agrees with Judge Ishii's decision
and finds that Plaintiff has filed at least three cases that
three cases Judge Ishii counted as strikes, which the Court
also takes judicial notice of, are: 1) Hoffmann v.
Jones (“Jones”), E.D. CA, Case No.
2:15-cv-01735; 2) Hoffmann v. California Correctional
Health Care Services (“CCHCS”),
E.D. CA, Case No. 2:16-cv-01691; and 3) Hoffmann v.
Growden (“Growden”), E.D. CA, Case
No. 2:15-cv-01431. Pulido, ECF No. 7, p. 2; ECF No.
was dismissed as being duplicative of Case No. 2:15-cv-1729.
Jones, ECF No. 9. Duplicative lawsuits filed by a
plaintiff proceeding in forma pauperis may be
dismissed as either frivolous or malicious. See e.g.,
Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th
Cir.1995). While the Jones Court did not state that
the filing was frivolous or malicious, the Court recommends
finding that it counts as a “strike” based on the
reasoning in the decision. Knapp 738 F.3d at 1109
(9th Cir. 2013) (internal citation omitted) (“[T]he
reviewing court looks to the dismissing court's action
and the reasons underlying it…. This means that the
procedural mechanism or Rule by which the dismissal is
accomplished, while informative, is not dispositive.”).
it does not appear that Plaintiff's duplicative filing
was merely a mistake. When it was brought to Plaintiff's
attention that Jones was duplicative of Case No.
2:15-cv-1729, Plaintiff attempted to argue that that
Jones was not in fact duplicative. Jones,
ECF No. 8. Despite Plaintiff's objection, the dismissing
court noted that Plaintiff's allegations in
Jones were in fact duplicative of Case No.
2:15-cv-1729, and dismissed Plaintiff's case.
Jones, ECF No. 9, p. 2. Accordingly, the Court finds
that Jones counts as a “strike” because
it was duplicative of another case and thus frivolous under
the legal standards described above.
CCHCS, the Court finds that it was dismissed for
failure to state a claim. Plaintiff apparently filed
CCHCS after getting a notification that a ...