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Pina v. Kernan

United States District Court, E.D. California

July 9, 2019

PABLO P. PINA, Plaintiff,
v.
SCOTT KERNAN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS REGARDING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS [ECF NO. 33]

         Plaintiff Pablo P. Pina is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.

         Currently before the Court is Defendants' motion to revoke Plaintiff's in forma status, filed May 9, 2019.

         I. RELEVANT BACKGROUND

         This action is proceeding against Defendants Urban, Peterson, Garcia, Leshniak, Davey, Hoggard, Kernan, and Hubbard for retaliation, conspiracy to retaliate, and a due process claim under the Fourteenth Amendment.

         As previously stated, on May 9, 2019, Defendants filed a motion to revoke Plaintiff's in forma pauperis status pursuant to 28 U.S.C. § 1915(g). Plaintiff filed an opposition on June 17, 2019, and Defendants filed a reply on June 24, 2019. Local Rule 230(1). Accordingly, Defendants' motion is deemed submitted for review without oral argument.

         II. DISCUSSION

         A. Legal Standard

         The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). 28 U.S.C. § 1915(g) provides that “[I]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on three 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.” “[I]f the language of a statute is clear, we look no further than that language in determining the statute's meaning, ” unless “what seems to be the plain meaning of the statute . . . lead[s] to absurd or impracticable consequences.” Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted).

         In Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005), the Ninth Circuit explained, “The PLRA does not define the terms ‘frivolous,' or ‘malicious,' nor does it define dismissals for failure to ‘state a claim upon which relief could be granted'… We have held that the phrase ‘fails to state a claim on which relief may be granted,' as used elsewhere in § 1915, ‘parallels the language of Federal Rule of Civil Procedure 12(b)(6).” In defining the terms frivolous and malicious, the Andrews court held, “[W]e look to their ‘ordinary, contemporary, common meaning.'…Thus, a case is frivolous if it is ‘of little weight or importance: having no basis in law or fact'…A case is malicious if it was filed with the ‘intention or desire to harm another'”. Andrews v. King, 398 F.3d at 1121 (internal quotations and citations omitted).

         The Andrews court further noted, “[n]ot all unsuccessful cases qualify as a strike under § 1915(g). Rather, § 1915(g) should be used to deny a prisoner's IFP status only when, after careful evaluation of the order dismissing an action, and other relevant information, the district court determines that the action was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d at 1121. In making the determination whether a dismissal counts as a strike, it is the substance of the dismissal which is determinative, not the styling of the dismissal. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016); O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008).

         In seeking revocation of Plaintiff's in forma pauperis status, Defendants bear the burden of establishing that Plaintiff has three or more strikes within the meaning of section 1915(g), which requires the submission of evidence sufficient to demonstrate at least three prior qualifying dismissals. Andrews v. King, 398 F.3d at 1120. “Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by explaining why a prior dismissal should not count as a strike…. [T] prisoner bears the ultimate burden of persuading the court that § 1915(g) does not preclude IFP status.” Id.

         A. Defendants' Request for Judicial Notice

         Defendants request that the Court take judicial notice of existence and content of the court records from Plaintiff's previous civil court proceedings. (ECF No. 29-2, Exs. A-H.)

         It is well established that a court may take judicial notice of its own records. Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011); Reyn's Pasta Bella, LLC v. Visa USA, Inc.,442 F.3d 741, 746 n.6 (9th Cir. 2006); Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967). Therefore, the court grants Defendants' motion to take judicial notice of court documents and ...


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