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Evans v. Sherman

United States District Court, E.D. California

October 18, 2019

RICHARD A. EVANS, Plaintiff,
v.
S. SHERMAN, et al., Defendants.

          ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS, GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTIVE RELIEF (Doc. Nos. 2, 7, 12)

         Plaintiff Richard A. Evans, a state prisoner, proceeds pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On February 15, 2019, plaintiff commenced this action by filing a complaint (Doc. No. 1) and an application to proceed in forma pauperis (Doc. No. 2). The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

         On February 21, 2019, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied and that he be required to pay the $400.00 filing fee in full to proceed with this action because: (1) he is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations in plaintiff's complaint to do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. No. 7.) Those findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 2-3.) On March 4, 2019, plaintiff filed objections (Doc. No. 9.)

         In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has conducted a de novo review of the case. Having carefully reviewed the entire file, the undersigned declines to adopt the findings and recommendations. Specifically, the undersigned finds that two of the three dismissal orders relied upon in the findings and recommendations as strikes under 28 U.S.C. § 1915(g) are not strike dismissals under the statute. Each of those dismissal orders relied upon in the findings and recommendations is addressed in turn below.

         The findings and recommendations rely upon the dismissal order in Evans v. Suisun Police Department, 2:17-cv-01889-KJM-CMK (E.D. Cal. Aug. 7, 2018) as a prior strike. A review of the docket in that case establishes that the action was dismissed “for failure to state a claim and for lack of prosecution and failure to comply with court rules and orders.” (Suisun Police Department, Doc. No. 16 at 2) (emphasis added). Accordingly, the dismissal of that case counts as a strike against plaintiff under 28 U.S.C. § 1915(g).

         Next, the findings and recommendations rely upon the dismissal in Evans v. California Department of Corrections and Rehabilitation, 2:17-cv-01891-JAM-KJN (E.D. Cal. Jan. 18, 2018) (“CDCR 1”) as a strike. In the order dismissing that action, the district judge “adopted in full” the magistrate judge's recommendation and dismissed the action without prejudice. (CDCR 1, Doc. No. 13 at 1.) Although the findings and recommendations pending before the undersigned in the present case state that CDCR 1 was “dismissed . . . for failure to prosecute, following a screening order dismissing [the] complaint for failure to state a claim” (Doc. No. 7 at 2 n.1), the undersigned notes that in CDCR 1, the dismissal order adopting the findings and recommendations did not state the grounds upon which it was dismissing the case without prejudice (see CDCR 1, Doc. No. 13 at 1). Moreover, the findings and recommendations in CDCR 1 pointed only to plaintiff's failure to file an amended complaint as directed as the basis for the dismissal. (CDCR 1, Doc. No. 12 at 1.) The undersigned acknowledges that the magistrate judge's screening order in CDCR 1 did include a statement that “plaintiff's allegations fail[ed] to state a cognizable Eighth Amendment violation.” (CDCR 1, Doc. No. 9 at 3.) However, the undersigned is not persuaded that such a conclusion reached by a magistrate judge in a screening order that grants leave to amend can form the basis of a § 1915(g) strike dismissal under circumstances where that plaintiff subsequently fails to file an amended complaint, the magistrate judge recommends dismissing the action solely for failure to file an amended complaint, and the district court “adopts in full” that recommendation and dismisses the case without any reference to whether the original complaint failed to state a claim.

         The findings and recommendations pending before the undersigned in the present case rely on the decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017), for the proposition that when courts “review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” (Doc. No. 7 at 2 n.1) (quoting Harris, 863 F.3d at 1142).[1] However, applying the holding in Harris, the dismissal in CDCR 1 does not count as a strike under § 1915(g) because the district court did not dismiss CDCR 1 for failure to state a claim. See Harris, 863 F.3d at 1143 (“Accordingly, we hold that when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”) (emphasis added). Indeed, in each of the four cases that were counted as strikes against the plaintiff-appellant in Harris, the screening order dismissing for failure to state a claim with leave to amend was issued by a district judge, not a magistrate judge.[2] The magistrate judge's screening order in CDCR 1 was not an order of dismissal, nor could it have been. See Williams v. King, 875 F.3d 500, 502-05 (9th Cir. 2017) (because unserved, not yet appearing named defendants had not consented to magistrate judge jurisdiction, the assigned magistrate judge lacked jurisdiction to dismiss the prisoner plaintiff's complaint for failure to state a claim upon screening); see also Branch v. Umphenour, 936 F.3d 994, 1005 (9th Cir. 2019) (“Without consent, a magistrate judge is limited to submitting a report and recommendation on dispositive pretrial motions, including motions to dismiss for failure to state a claim . . .. The magistrate judges who screened Branch's various complaints lacked jurisdiction to dismiss his claims.”).[3] In short, in CDCR 1 the court simply never dismissed plaintiff's complaint on the ground that he failed to state a claim. Rather, according to the district judge's order of dismissal, that case was dismissed solely due to plaintiff's failure to file an amended complaint, i.e. for failure to abide by the court's order or to prosecute. Therefore, neither the decision in Harris nor the one in El-Shaddai compels a finding that the dismissal of CDCR 1 counts as a strike dismissal against plaintiff.

         For these same reasons, the court finds that the last case relied upon in the pending findings and recommendations as a strike dismissal-the dismissal in Evans v. California Department of Corrections and Rehabilitation, 2:17-cv-01890-JAM-CMK (E.D. Cal. Apr. 26, 2018) (“CDCR 2”)-also does not count as a strike under § 1915(g). In CDCR 2, the district judge “adopted in full” the assigned magistrate judge's recommendation and specifically dismissed the action solely “for plaintiff's failure to prosecute.” (CDCR 2, Doc. No. 14 at 2 (citing E.D. Cal. R. 110; Fed.R.Civ.P. 41).) Moreover, the findings and recommendations that were adopted in the order of dismissal issued in CDCR 2 recommended dismissing the action solely due to plaintiff's “failure to prosecute, ” citing the same rules. (CDCR 2, Doc. No. 13 at 2.) As in CDCR 1, in CDCR 2, the magistrate judge screened the original complaint and found that “[p]laintiff fail[ed] to allege a cognizable Eighth Amendment claim.” (CDCR 2, Doc. No. 9 at 6.) However, that screening order was also issued by the magistrate judge, who, for the reasons discussed above, lacked jurisdiction to dismiss the complaint. See Williams, 875 F.3d at 502-05; Branch, 936 F.3d at 1005. In short, the district court never issued any order dismissing the complaint in that action on the ground that it failed to state a claim. Accordingly, the undersigned concludes that the dismissal of CDCR 2 also does not count as a strike dismissal against plaintiff.[4]

         Finally, after the magistrate judge issued the findings and recommendations pending before the court in this case, plaintiff filed a “motion for federal protection.” (See Doc. No. 12.) Therein, plaintiff argues that various state and federal officials have “failed to consider, recognize, or acknowledge [his] state & federal due process rights, ” and that he has been falsely charged with and wrongfully convicted of sexually abusing minors. (Id. at 1.) Plaintiff seeks federal protection, release from CDCR custody, and that judicial notice be taken of several pending actions. (Id.) The court interprets plaintiffs motion as one seeking preliminary injunctive relief. However, “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008). Here, plaintiffs motion fails to meet any of these requirements. Accordingly, plaintiffs motion will be denied.

         For the reasons set forth above:

1. The undersigned declines to adopt the February 21, 2019 findings and recommendations (Doc. No. 7);
2. Plaintiff s application to proceed in forma pauperis (Doc. No. 2) is granted;
3. Plaintiff s motion for federal protection (Doc. No. 12), deemed by the court to be a motion for preliminary injunctive relief, is denied; and
4. The matter is referred back to the assigned magistrate for proceedings ...

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