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Hoffmann v. Sherman

United States District Court, E.D. California

March 27, 2018

KASEY F. HOFFMANN, Plaintiff,
v.
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)

         I. BACKGROUND

         Kasey 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. § 1983.

         As the 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 action.

         II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

         28 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.”

         In 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] dismissal'”).

         III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

         a. Strikes

         Plaintiff 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.”

         The Court takes judicial notice of Hoffman v. Pulido (“Pulido”), [1] 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 constitute “strikes.”

         The 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. 10.

         Jones 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.”).

         Here, 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.

         As to CCHCS, the Court finds that it was dismissed for failure to state a claim. Plaintiff apparently filed CCHCS after getting a notification that a ...


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