United States District Court, E.D. California
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (DOC. NO.
5)
Plaintiff
Allen Hamler is a state prisoner proceeding pro se
with this civil rights action pursuant to 42 U.S.C. §
1983. Plaintiff commenced this action by filing a complaint
on August 23, 2019. (Doc. No. 1.) Plaintiff has not filed an
application to proceed in forma pauperis pursuant to
28 U.S.C. § 1915, nor has he paid the $400.00 filing
fee. 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
September 10, 2019, the assigned magistrate judge issued
findings and recommendations, recommending that the court not
permit plaintiff to proceed in forma pauperis and
that he be required to pay the filing fee in order 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 do not satisfy the
“imminent danger of serious physical injury”
exception to § 1915(g). (Doc. No. 5 at 3-4.) 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 5.)
On October 24, 2019, plaintiff filed objections to the
pending findings and recommendations. (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, including plaintiff's objections, the
undersigned concludes that the findings and recommendations
are supported by the record and proper
analysis.[1]
In his
objections to the pending findings and recommendations,
Plaintiff asserts that two of the dismissal orders relied
upon in the findings and recommendations-Hammler v.
Kernan, 3:18-cv-01170-DMS-NLS (S.D. Cal. Dec. 10, 2018)
and Hammler v. Hough, 3:18-cv-01319-LAB-BLM (S.D.
Cal. May 24, 2019)-cannot count as strikes because they are
pending appeal in the Ninth Circuit Court of Appeals. (Doc.
No. 9 at 2.) Plaintiff is mistaken as a matter of law. The
United States Supreme Court has clarified that “[a]
prior dismissal on a statutorily enumerated ground counts as
a strike even if the dismissal is the subject of an appeal,
” and has held “that a prisoner who has
accumulated three prior qualifying dismissals under §
1915(g) may not file an additional suit in forma
pauperis while his appeal of one such dismissal is
pending.” Coleman v. Tollefson, U.S.,, 135
S.Ct. 1759, 1763, 1765 (2015); see also Lipsey v.
Mendoza, No. 1:18-cv-00969-LJO-GSA-PC, 2019 WL 295767,
at *2 (E.D. Cal. Jan. 23, 2019) (citing Coleman, 135
S.Ct. at 1765) (“Plaintiff is not entitled to proceed
in forma pauperis in this case, even if he has not
exhausted or waived his opportunity to appeal any of his
cases that count as a strike under 28 U.S.C §
1915(g).”).
Plaintiff
also contends that the dismissal order in Hammler v.
Hudson, 2:16-cv-01153-JAM-EFB (E.D. Cal. May 17, 2019)
should not count as a strike because his complaint in that
case was dismissed for failure to exhaust administrative
remedies, which is not one of the enumerated reasons under
§ 1915(g). (Doc. No. 9 at 2.) However, plaintiff's
failure to exhaust his administrative remedies prior to
filing suit was clear from the face of his complaint filed in
Hudson. (Hudson, Doc. No. 50 at 4, 10.) Thus, the
Hudson dismissal is properly counted as a strike
under § 1915(g). See 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
strike.”).
Accordingly:
1. The findings and recommendations (Doc. No. 5) issued on
September 10, 2019 are adopted;
2. Within thirty days from the date of service of this order,
plaintiff is required to pay in full the $400.00 filing fee
for this action; and
3. Plaintiff s failure to pay the required filing fee as
ordered will result in the dismissal of this action without
prejudice.
IT IS
SO ORDERED.
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Notes:
[1] The undersigned notes that the
findings and recommendations relied upon four prior cases
that were dismissed and counted all of them as strikes under
28 U.S.C. § 1915(g). The undersigned disagrees with the
magistrate judge's conclusion that the dismissal in
Hammler v. Director of CDCR, 1:17-cv-00097-NJV (N.D.
Cal. Apr. 27, 2017) (“CDCR”) constitutes
a strike under § 1915(g). However, because the court
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