United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND
REQUIRING PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH
THIS ACTION (ECF NOS. 7, 10)
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
Allen Hammler is a state prisoner proceeding pro se
in this civil rights action pursuant to 42 U.S.C. §
1983. This action was referred to a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local
initiated this action on August 1, 2019. (ECF No. 1.) On
September 26, 2019, Plaintiff filed an application to proceed
in forma pauperis. (ECF No. 7.)
October 2, 2019, the assigned Magistrate Judge issued
findings and recommendations that Plaintiff's application
to proceed in forma pauperis be denied pursuant to
28 U.S.C. § 1915(g) and that Plaintiff be required to
pay the $400.00 filing fee in full in order to proceed with
this action. (ECF No. 10.) The findings and recommendations
were served on Plaintiff and contained notice that any
objections thereto were to be filed within thirty (30) days
after service of the findings and recommendations.
(Id.) Plaintiff timely filed objections on October
24, 2019. (ECF No. 11.)
objections, Plaintiff asserts that his application to proceed
in forma pauperis should be granted because two of
the three cases cited by the Magistrate Judge do not qualify
as strikes pursuant to § 1915(g).
Plaintiff contends that Hammler v. Hudson, No.
2:16-cv-01153-JAM-EFB (E.D. Cal.)
(“Hudson”) cannot be counted as a strike
for two reasons. Initially, Plaintiff argues that
Hudson cannot be counted as a strike because the
action was dismissed on a ground other than it is
“frivolous, malicious, or fails to state a claim upon
which relief may be granted.” 28 U.S.C. § 1915(g).
Specifically, Plaintiff states that, since the court in
Hudson considered materials outside of the pleading
in deciding Defendants' motion to dismiss for failure to
exhaust administrative remedies, the dismissal in
Hudson must be treated as a dismissal resulting from
the grant of a motion for summary judgment based on the
absence of a material issue of fact, not a dismissal
resulting from the grant of a motion to dismiss based upon
failure to state a claim.
after reviewing the November 27, 2018 findings and
recommendations regarding Defendants' motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) and the
May 17, 2019 order adopting the findings and recommendations,
granting Defendants' motion to dismiss, and dismissing
Plaintiff's claims without prejudice for failure to
exhaust administrative remedies in Hudson, it is
clear that Defendants' motion to dismiss was not
converted into a motion for summary judgment because the
Hudson court did not rely on any materials outside
of the pleadings when the court decided Defendants'
motion to dismiss. See Jackson v. Southern California Gas
Co., 881 F.2d 638, 642 n.4 (9th Cir. 1989) (Rule
12(b)(6) motion to dismiss is only converted into a motion
for summary judgment when court relies on the matters outside
of the pleadings in deciding the motion). Specifically, the
Hudson court granted Defendants' motion to
dismiss and dismissed Plaintiff's claims without
prejudice because it was clear from the face of
Plaintiff's amended complaint and the attachments thereto
that Plaintiff failed to exhaust his administrative remedies
before filing Hudson. By finding that
Plaintiff's failure to exhaust was clear from the face of
Plaintiff's amended complaint, the Hudson court
dismissed the action pursuant to Rule 12(b)(6) for failure to
state a claim, a ground enumerated in § 1915(g).
El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir.
2016) (holding that an action may be dismissed pursuant to
Rule 12(b)(6) for failure to state a claim where a
plaintiff's failure to exhaust administrative remedies is
“clear from the face of the complaint”).
Plaintiff argues that Hudson cannot be counted as a
strike because the action was dismissed without prejudice.
However, “[b]ecause § 1915(g) of the current PLRA
does not distinguish between dismissals with and without
prejudice, … a dismissal without prejudice may count
as a strike.” O'Neal v. Price, 531 F.3d
1146, 1154 (9th Cir. 2008); see also Paul v.
Marberry, 658 F.3d 702, 704 (7th Cir. 2011) (“A
dismissal is a dismissal, and provided that it is on one of
the grounds specified in section 1915(g) it counts as a
strike, whether or not it's with prejudice.”
(internal citation omitted)); Day v. Maynard, 200
F.3d 665, 667 (10th Cir. 1999) (“Moreover, a dismissal
without prejudice counts as a strike, so long as the
dismissal is made because the action is frivolous, malicious,
or fails to state a claim.”). Therefore,
Hudson is appropriately counted as a strike pursuant
to § 1915(g).
Plaintiff contends that Hammler v. Hough, No.
3:18-cv-01319-LAB-BLM (S.D. Cal.)
(“Hough”) cannot be counted as a strike
because the case is currently on appeal with the Ninth
Circuit Court of Appeals, No. 19-55732, and a dismissal
cannot be counted against a plaintiff until the plaintiff has
exhausted, or waived, their appeal. In support, Plaintiff
cites to Adepegba v. Hammons, 103 F.3d 383, 387-88
(5th Cir. 1996), and Campbell v. Davenport Police
Dep't., 471 F.3d 952, 952 (8th Cir. 2006). However,
both cases have since been abrogated by the Supreme Court,
which held that “[a] prior dismissal on a statutorily
enumerated ground counts as a strike even if the dismissal is
the subject of an appeal.” Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (2015). The Supreme
Court further explained that there is nothing in the plain
language of section 1915(g) “that would transform a
dismissal into a dismissal-plus-appellate-review, ” and
this reading is consistent with the statute's treatment
of the trial and appellate stages of litigation as distinct.
Id. at 1763-64. Therefore, Hough is
appropriately counted as a strike pursuant to § 1915(g)
accordance with the provisions of 28 U.S.C. §
636(b)(1)(C), the Court has conducted a de novo
review of this case. Having carefully reviewed the entire
file, including Plaintiff's objections, the Court finds
that the findings and recommendations are supported by the
record and by proper analysis.
IT IS HEREBY ORDERED that:
findings and recommendations issued on October 2, 2019, (ECF
No. 10), are adopted in full;
accordance with 28 U.S.C. § 1915(g), Plaintiff's
application to proceed in forma pauperis, (ECF No.
7), is DENIED;
Within twenty-one (21) days following the
date of service of this order, Plaintiff shall pay the
$400.00 filing fee in ...