1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TERRENCE L. DAVIS, No. 1:18-cv-01667-DAD-EPG 12 Plaintiff, 13 v. ORDER DECLINING TO ADOPT FINDINGS

AND RECOMMENDATIONS AND

14 KINGS COUNTY BOARD OF GRANTING PLAINTIFF’S APPLICATIONS SUPERVISORS, et al., TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 5, 8, 11) 16

17 18 Plaintiff Terrence L. Davis is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint on 20 December 7, 2018 (Doc. No. 1) and an application to proceed in forma pauperis on December 26, 21 2018 (Doc. No. 5). On February 25, 2019, plaintiff filed a second application to proceed in forma 22 pauperis. (Doc. No. 8.) The matter was referred to a United States Magistrate Judge pursuant to 23 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 On May 10, 2019, the assigned magistrate judge issued findings and recommendations, 25 recommending that plaintiff’s applications to proceed in forma pauperis be denied and that he be 26 required to pay the $400.00 filing fee in full to proceed with this action because: (1) he is subject 27 to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations of plaintiff’s complaint 28 do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. No. 1 11 at 1.) Those findings and recommendations were served on plaintiff and contained notice that 2 any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 10.) On 3 June 3, 2019, plaintiff requested a 40-day extension of time to file objections to the findings and 4 recommendations (Doc. No. 12), which the court granted on June 6, 2019 (Doc. No. 13). On 5 August 12, 2019, plaintiff again requested an extension of time to file his objections (Doc. No. 6 14), and the court granted a 30-day extension of time to do so on August 15, 2019. (Doc. No. 7 15.) Nonetheless, plaintiff did not timely file objections to the findings and recommendations, 8 and instead filed a third request for an extension of time to do so on November 20, 2019. (Doc. 9 No. 16.) On November 21, 2019, the court denied plaintiff’s third request for an extension of 10 time to file his objections to the pending findings and recommendations. (Doc. No. 17.) 11 Thereafter, plaintiff did not file any objections to the pending findings and recommendations. 12 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 13 conducted a de novo review of the case. Having carefully reviewed the entire file, the 14 undersigned declines to adopt the findings and recommendations. Specifically, the undersigned 15 concludes that two of the four dismissal orders relied upon in the findings and recommendations 16 as strikes under 28 U.S.C. § 1915(g) do not qualify as strike dismissals under the statute. Each of 17 the dismissal orders relied upon in the findings and recommendations is addressed in turn below. 18 First, the findings and recommendations rely upon the dismissal order in Davis v. High 19 Desert State Prison, 2:14-cv-00404-EFB (E.D. Cal. Nov. 7, 2014) as a prior strike. A review of 20 the docket in that case establishes that the action was dismissed “for failure to prosecute and 21 failure to state a claim upon which relief may be granted.” (High Desert State Prison, Doc. No. 22 16 at 2.) That dismissal order was signed by a magistrate judge, and plaintiff had consented to 23 magistrate judge jurisdiction in that action. (High Desert State Prison, Doc. No. 8.) The United 24 States Court of Appeals for the Ninth Circuit recently clarified that although “a magistrate judge 25 lacks the authority to dismiss a case unless all parties have consented to proceed before the 26 magistrate judge,” a prisoner plaintiff “cannot escape the consequences of [a] prior judgment [] 27 through an untimely collateral attack.” Hoffman v. Pulido, 928 F.3d 1147, 1149–1150 (9th Cir. 28 2019) (citing Williams v. King, 875 F.3d 500, 504-05 (9th Cir. 2017)); see also Jones v. Alameda 1 Dist. Attorney’s Office, No. 19-cv-04428-RS (PR), 2019 WL 4845694, at *1, n.2 (N.D. Cal. Oct. 2 1, 2019) (citing Hoffman, 928 F.3d at 1150) (counting dismissal orders signed by magistrate 3 judges as strikes under § 1915(g)). Accordingly, the dismissal of Davis v. High Desert State 4 Prison qualifies as a strike against plaintiff under 28 U.S.C. § 1915(g). 5 Second, the findings and recommendations rely upon the dismissal in Davis v. Chapparo, 6 1:06-cv-00118-LJO-SMS (E.D. Cal. June 1, 2007) as a prior strike. A review of the docket in 7 that case establishes that the action was dismissed by the assigned district judge “for failure to 8 obey the court’s order . . . and for failure to state a claim upon which relief can be granted.” 9 (Chapparo, Doc. No. 17 at 2.) Accordingly, the dismissal of that case counts as a strike against 10 plaintiff under 28 U.S.C. § 1915(g). 11 Third, the findings and recommendations rely upon the dismissal in Davis v. Solano State 12 Prison, 2:01-cv-00082-LKK-GGH (E.D. Cal. Feb. 7, 2007) as a prior strike. A review of the 13 docket in that case establishes that on August 3, 2001, plaintiff’s operative complaint was 14 dismissed for failure to state a claim, and that some of plaintiff’s claims were also dismissed as 15 duplicative or Heck-barred. (Solano State Prison, Doc. No. 7.) Plaintiff was given leave to 16 amend the complaint in that action but instead of filing an amended complaint, plaintiff requested 17 a stay so that he could exhaust his administrative remedies. (Solano State Prison, Doc. No. 17.) 18 Plaintiff’s request led the magistrate judge to issue findings and recommendations, 19 recommending that that action be dismissed without prejudice due to plaintiff’s failure to exhaust 20 administrative remedies—a failure that was not clear from the face of the complaint. (Solano 21 State Prison, Doc. No. 18.) The district court “adopted in full” the magistrate judge’s 22 recommendation that plaintiff’s complaint be dismissed without prejudice due to his “failure to 23 exhaust administrative remedies.” (Solano State Prison, Doc. No. 22.) 24 The findings and recommendations now pending before this court recommend that the 25 dismissal in Solano State Prison be counted as a strike even though plaintiff’s failure to exhaust 26 his administrative remedies prior to filing suit was not clear from the face of the complaint, 27 because plaintiff conceded that he failed to exhaust and had filed his civil complaint prematurely. 28 (Doc. No. 11 at 4.) The undersigned is not persuaded that such an admission is materially similar 1 to a complaint that on its face reflects a failure to exhaust administrative remedies prior to filing 2 suit. See El-Shaddai v. Zamora, 833 F.3d 1036, 1044 (9th Cir. 2016) (holding that a dismissal for 3 failure to exhaust administrative remedies counts as a strike dismissal under § 1915(g) if the 4 failure to exhaust is clear from the face of the complaint); see also Kelly v. Elit, No. 1:18-cv- 5 00019-DAD-SAB, 2018 WL 1905667, at *2 (E.D. Cal. Apr. 23, 2018) (“[I]f a case is dismissed 6 because the failure to exhaust was clear on the face of the complaint, and no outside evidence was 7 considered in reaching that determination, the dismissal would count as a strike.”). In Solano 8 State Prison plaintiff’s later concession of his failure to exhaust was not reflected on the face of 9 his complaint. Accordingly, the dismissal in Solano State Prison cannot be counted as a strike 10 against plaintiff under 28 U.S.C. § 1915(g). 11 Fourth and finally, the findings and recommendations rely upon the dismissal in Davis v. 12 Solano State Prison (“SSP II”), 2:04-cv-00320-DFL-KJM (E.D. Cal. Feb. 7, 2007) as a prior 13 strike. A review of the docket in that case establishes that on November 9, 2004, the assigned 14 magistrate judge issued a screening order dismissing plaintiff’s complaint because he had failed 15 to state cognizable claims and because some of his claims were Heck-barred. (SSP II, Doc. No. 16 5.) Plaintiff was given leave to amend a single, potentially viable claim. (SSP II, Doc. No. 5 at 17 5.) However, plaintiff did not file an amended complaint, and on January 5, 2005, the magistrate 18 judge issued findings and recommendations, noting plaintiff’s failure to file an amended 19 complaint or otherwise respond to the court’s order and recommending that the action be 20 dismissed without prejudice. (SSP II, Doc. No. 7.) The district court “adopted in full” the 21 magistrate judge’s findings and recommendations and dismissed the action without prejudice. 22 (SSP II, Doc. No. 8.) 23 Although the findings and recommendations pending before the undersigned in the 24 present case state that SSP II was “dismissed because plaintiff failed to file an amended complaint 25 after a screening order dismissed the operative complaint for failure to state a claim, with leave to 26 amend” (Doc. No. 11 at 3), the undersigned notes that in SSP II, the dismissal order adopting the 27 findings and recommendations did not state the grounds upon which it was dismissing the case 28 without prejudice (see SSP II, Doc. No. 8). Moreover, the findings and recommendations in SSP 1 II pointed only to plaintiff’s failure to file an amended complaint as directed as the basis for 2 dismissal. (SSP II, Doc. No. 7 at 1.) The undersigned acknowledges that the magistrate judge’s 3 screening order in SSP II did include statements that “any claimed error in the review of 4 plaintiff’s administrative appeals does not state a cognizable claim,” and that the “portion of 5 plaintiff’s complaint [regarding outpatient program placement] similarly fails to state a claim.” 6 (SSP II, Doc. No. 5 at 4.) However, the undersigned is not persuaded that such a conclusion 7 reached by a magistrate judge in a screening order that grants leave to amend can form the basis 8 of a § 1915(g) strike dismissal under circumstances where that plaintiff subsequently fails to file 9 an amended complaint, the magistrate judge recommends dismissing the action solely for failure 10 to file an amended complaint, and the district court “adopts in full” that recommendation and 11 dismisses the case without any reference to whether the original complaint failed to state a claim. 12 The findings and recommendations pending before the undersigned in the present case 13 rely on the decision in Harris v. Mangum, 863 F.3d 1133 (9th Cir. 2017). However, applying the 14 holding in Harris, the dismissal in SSP II does not count as a strike under § 1915(g) because the 15 district court did not dismiss SSP II for failure to state a claim. See Harris, 863 F.3d at 1143 16 (“Accordingly, we hold that when (1) a district court dismisses a complaint on the ground that it 17 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 18 amended complaint, the dismissal counts as a strike under § 1915(g).”) (emphasis added). 19 Indeed, in each of the four cases that were counted as strikes against the plaintiff-appellant in 20 Harris, the screening order dismissing for failure to state a claim with leave to amend was issued 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 by a district judge, not a magistrate judge.1 The magistrate judge’s screening order in SSP II was 2 not an order of dismissal, nor could it have been. See Williams v. King, 875 F.3d 500, 502–05 3 (9th Cir. 2017) (because unserved, not yet appearing named defendants had not consented to 4 magistrate judge jurisdiction, the assigned magistrate judge lacked jurisdiction to dismiss the 5 prisoner plaintiff’s complaint for failure to state a claim upon screening); see also Branch v. 6 Umphenour, 936 F.3d 994, 1005 (9th Cir. 2019) (“Without consent, a magistrate judge is limited 7 to submitting a report and recommendation on dispositive pretrial motions, including motions to 8 dismiss for failure to state a claim . . .. The magistrate judges who screened Branch’s various 9 complaints lacked jurisdiction to dismiss his claims.”)2 In short, in SSP II the court simply never 10 dismissed plaintiff’s complaint on the ground that he failed to state a claim. Rather, according to 11 the district judge’s order of dismissal, that case was dismissed solely due to plaintiff’s failure to 12 file an amended complaint, i.e. for failure to abide by the court’s order or to prosecute. 13 Accordingly, the dismissal in SSP II does not count as a strike against plaintiff under 28 U.S.C. 14 § 1915(g). 15 ///// 16 1 The practice of designating dismissals as “strikes” under § 1915(g) in orders of dismissal has 17 been criticized because it is the subsequent courts who must determine whether a plaintiff is barred from maintaining an action in forma pauperis by the three strikes rule. In this regard, the 18 Second Circuit has stated: “[D]istrict courts should not issue these strikes one by one, in their 19 orders of judgment, as they dispose of suits that may ultimately—upon determination at the appropriate time—qualify as strikes under the terms of § 1915(g).” DeLeon v. Doe, 361 F.3d 93, 20 95 (2d Cir. 2004); see also Andrews v. King, 398 F.3d 1113, 1119 n.8 (9th Cir. 2005) (“[T]he district court is not required to determine whether the prisoner’s case is frivolous, malicious or 21 fails to state a claim and therefore will count as a future strike under § 1915(g).”); Shabbazz v. Fischer, No. 9:11-CV-0916 (TJM/ATB), 2012 WL 3241653, at *1 (N.D.N.Y Aug. 7, 2012) (“In 22 other words, a strike may not be assessed at the same time that the action or appeal is dismissed. 23 Instead, it is up to a later judge to determine, when the time is right, whether three previously dismissed actions or appeals might constitute strikes.”); Pough v. Grannis, 08CV1498–JM 24 (RBB), 2010 WL 3702421, at *13 (S.D. Cal. July 16, 2010) (denying defendants’ request that the court designate a dismissal as a strike under § 1915(g) at the time of dismissal). Nonetheless, 25 unlike the present case, the district judge’s screening orders in Harris also specifically warned plaintiff that failure to file an amended complaint would result in a strike dismissal. 26

27 2 The Ninth Circuit also observed: “This juxtaposition—“the court” on the one hand, “a magistrate judge” on the other—suggests two different entities. In context, then, “the court” is 28 most naturally understood as referring to a district judge.” Branch, 936 F.3d at 1002. 1 For the reasons set forth above: 2 1. The undersigned declines to adopt the May 10, 2019 findings and 3 recommendations (Doc. No. 11); 4 2. Plaintiffs applications to proceed in forma pauperis (Doc. Nos. 5, 8) are granted; 5 and 6 3. The matter is referred back to the assigned magistrate for proceedings consistent 7 with this order. 8 | IT IS SOORDERED. a 9 Li. wh F Dated: _ December 17, 2019 Sea 1" S098 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28