United States District Court, E.D. California
ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS
AND GRANTING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
PAUPERIS (DOC. NOS. 8, 10)
Allen Hammler, a state prisoner, proceeds pro se in
this civil rights action pursuant to 42 U.S.C. § 1983.
Plaintiff commenced this action by filing a complaint (Doc.
No. 1) and an application to proceed in forma
pauperis (Doc. No. 8). The matter was referred to a
United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302.
August 13, 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. 10 at 1-2.) 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 3.)
On August 23, 2019, plaintiff filed objections (Doc. No. 11.)
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, including plaintiff's objections, the
undersigned declines to adopt the findings and
recommendations. Specifically, the undersigned concludes 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 the
dismissal orders relied upon in the findings and
recommendations is addressed in turn below.
findings and recommendations rely upon the dismissal order in
Hammler v. Hough, 3:18-cv-01319-LAB-BLM (S.D. Cal.
May 24, 2019) as a prior strike. A review of the docket in
that case establishes that the action was dismissed by a
district court “for failure to state a claim . . . and
as frivolous.” (Hough, Doc. No. 12 at 16.)
Accordingly, the dismissal of that case counts as a strike
against plaintiff under 28 U.S.C. § 1915(g).
the findings and recommendations rely upon the dismissal in
Hammler v. Hudson, 2:16-cv-01153-JAM-EFB (E.D. Cal.
May 17, 2019) as a prior strike. A review of the docket in
that case establishes that the action was dismissed after the
district court “adopted in full” the magistrate
judge's recommendation that plaintiff's complaint be
dismissed for “failure to exhaust administrative
remedies.” (Hudson, Doc. No. 56 at 2.) In
Hudson, the assigned magistrate judge screened
plaintiff's complaint and found that “[i]t [wa]s
clear from the face of the complaint and [its] attachments
that plaintiff ha[d] failed to exhaust his administrative
remedies” and thereafter recommended dismissing the
action “for failure to exhaust administrative
remedies.” (Hudson, Doc. No. 50 at 4, 10);
see also El-Shaddai v. Zamora, 833 F.3d 1036, 1044
(9th Cir. 2016) (Holding that a dismissal for failure to
exhaust administrative remedies counts as a strike dismissal
under § 1915(g) if the failure to exhaust is clear from
the face of the complaint); Kelly v. Elit, No.
1:18-cv-00019-DAD-SAB, 2018 WL 1905667, at *2 (E.D. Cal. Apr.
23, 2018) (“[I]f a case is dismissed because the
failure to exhaust was clear on the face of the complaint,
and no outside evidence was considered in reaching that
determination, the dismissal would count as a
however, argues that the Hudson dismissal order
cannot count as a strike against him because it was issued on
May 17, 2019 and the present action was filed on April 17,
2019, which is the date that plaintiff contends that he
conveyed his complaint in this action to prison officials.
(Doc. No. 11 at 2); see also Douglas v. Noelle, 567
F.3d 1103, 1107 (9th Cir. 2009) (the mailbox rule-which
provides that a prisoner's filing is considered
“filed” at the time he delivers it to prison
authorities for forwarding to the Clerk of the
Court-“applies to § 1983 suits filed by pro
se prisoners”). Plaintiff therefore argues that
the dismissal in Hudson does not count as a strike
against him because the dismissal in that case was not issued
prior to the filing of his complaint in this action.
See 28 U.S.C. § 1915(g) (“In 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 . . ..”)
(emphasis added); see also Ramey v. Franco, No.
2:16-cv-2107-JAM-CKD-P, 2018 WL 784294, at *2 (E.D. Cal. Feb.
8, 2018) (“Once a plaintiff has accrued three
strikes, he is precluded from proceeding IFP . . ..”)
(emphasis added). Plaintiff's objection is well taken.
Although the docket in this case lists June 4, 2019, as the
filing date of plaintiff's complaint, it bears a date
stamp reflecting that it was actually received by the Clerk
of the Court on April 22, 2019. (See Doc. No. 1 at
1.) The Hudson dismissal order was issued almost
three weeks later, in May of 2019. Accordingly, the court
concludes that the Hudson dismissal-despite
constituting a strike dismissal against plaintiff for any
action he files after May 17, 2019-does not count as a prior
strike dismissal against plaintiff in this action, which was
filed before the May 17, 2019 dismissal.
the last dismissal order relied upon as a strike in the
pending findings and recommendations-the dismissal in
Hammler v. Director of CDCR, 1:17-cv-00097-NJV (N.D.
Cal. Apr. 27, 2017) (“CDCR”)-also does
not constitute a strike against plaintiff under 28 U.S.C.
§ 1915(g). In CDCR, plaintiff consented to the
magistrate judge's jurisdiction, the magistrate judge
screened plaintiff's complaint, and the magistrate judge
thereafter dismissed the complaint due to plaintiff's
failure to file an amended complaint or otherwise communicate
with the court after the issuance of its screening order.
(CDCR, Doc. No. 10 at 1.) Notably, the screening
order in CDCR found that “[i]t [wa]s . . . not
clear at this early stage if plaintiff ha[d] exhausted his
claim or if he ha[d] even presented a cognizable
claim.” (CDCR, Doc. No. 9 at 5.) Although the
findings and recommendations pending before the undersigned
in the present case state that CDCR was
“dismissed . . . for failure to file an amended
complaint following a screening order dismissing [the]
complaint for failure to state a claim” (Doc. No. 10 at
2 n.1), the undersigned notes that: (1), in CDCR,
the dismissal order noted that plaintiff did not file an
amended complaint and thus dismissed “[t]h[e] case . .
. for the reasons set forth in the prior [screening
order]” (CDCR, Doc. No. 10 at 1); and (2) the
screening order did not dismiss CDCR for
failure to state a claim but rather due to plaintiff's
failure to allege that he exhausted his administrative
remedies for his constitutional claims prior to asserting
them in his federal suit (CDCR, Doc. No. 9 at 4).
Indeed, the screening order in CDCR explicitly noted
that it was not clear to the magistrate judge at the
screening stage whether plaintiff's complaint presented a
cognizable claim. (Id. at 5.) Moreover, as indicated
above, a dismissal for failure to exhaust administrative
remedies prior to filing suit counts as a strike only if
under § 1915(g) only if the failure is obvious from the
allegations of the complaint, which does not appear to have
been the case in CDCR. Accordingly, the court
concludes that the dismissal of CDCR also does not
count as a strike dismissal against plaintiff.
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).This analysis, however, does not
change the undersigned's conclusion here that the
dismissal in CDCR does not count as a strike
dismissal against plaintiff. As discussed, the magistrate
judge in CDCR acknowledged that it was not possible
at the screening stage to determine whether plaintiff stated
a cognizable claim due to his failure to allege that he had
exhausted his administrative remedies. Such a dismissal in no
way rings the PLRA bells of frivolous, malicious, or failure
to state a claim. Therefore, neither the decision in
Harris nor the one in El-Shaddai compels a
finding that the dismissal of CDCR counts as a
strike dismissal against plaintiff.
reasons set forth above:
1. The undersigned declines to adopt the August 13, 2019
findings and recommendations (Doc. No. 10);
2. Plaintiff s application to proceed in forma
pauperis (Doc. No. 8) is granted; and
3. The matter is referred back to the assigned magistrate for
proceedings consistent with this order.