(PC) Pina v. Kernan

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 PABLO P. PINA, No. 1:17-cv-01681-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 SCOTT KERNAN, et al., MOTION TO REVOKE IN FORMA PAUPERIS STATUS 15 Defendants. (Doc. Nos. 33, 35, 37) [17] 18 Plaintiff Pablo P. Pina is a state prisoner proceeding pro se and in forma pauperis in this 19 civil rights action pursuant to 42 U.S.C. § 1983 . The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 302. 21 On May 9, 2019, defendants Davey, J.C. Garcia, Hoggard, Susan Hobbard, Scott Kernan, 22 Leshniak, Peterson, and Urban filed a motion to revoke plaintiff’s in forma pauperis status under [23] 28 U.S.C. § 1915 (g). (Doc. No. 33.) On June 17, 2019, plaintiff filed a motion in opposition to 24 defendants’ motion to revoke his in forma pauperis status and a request to conduct limited 25 discovery. (Doc. No. 35.) On July 10, 2019, the assigned magistrate judge issued findings and 26 recommendations recommending that defendants’ motion to revoke plaintiff’s in forma pauperis 27 be denied. (Doc. No. 37.) On July 29, 2019, defendants filed objections to those findings and 28 recommendations. (Doc. No. 38.) 1 In their objections to the findings and recommendations, defendants argue that the 2 magistrate judge mistakenly determined that the prior dismissal of one of plaintiff’s previous 3 lawsuits, Pina v. Dougherty, et al., Case No. 3:99-cv-397 (N.D. Cal. 1999), did not count as a 4 strike, even though the underlying basis for that order of dismissal was plaintiff’s failure to state a 5 claim. (Doc. No. 38 at 3.) 6 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(B) and Local Rule 304, this 7 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 8 including defendants’ objections, the court finds the findings and recommendations to be 9 supported by the record and proper analysis. The magistrate judge properly concluded that the 10 dismissal without prejudice in Pina v. Dougherty, et al. was based upon the district court’s 11 determination that plaintiff could not proceed with his action for damages unless and until his 12 criminal conviction was set aside under the holding in Heck v. Humphrey, 512 U.S. 477 (1994), 13 but also raised several other claims including one for injunctive relief. (Doc. No. 37 at 6–7.) 14 Accordingly, Pina v. Dougherty was not dismissed in its entirety for a qualifying reason under § 15 1915(g). Harris v. Harris, 935 F.3d 670, 674 (9th Cir. 2019) (“We must also evaluate whether all 16 the claims in a given suit satisfy the enumerated grounds for strikes, and partial dismissals of even 17 one claim for a non-qualifying reason will save an entire case from constituting a strike.”); 18 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016) (“When we 19 are presented with multiple claims within a single action, we assess a PLRA strike only when the 20 ‘case as a whole’ is dismissed for a qualifying reason under the Act.”); Andrews v. Cervantes, 493 21 F.3d 1047, 1054 (9th Cir. 2007), as amended (July 5, 2007)). 22 Accordingly, 23 1. The findings and recommendations issued on July 10, 2019 (Doc. No. 37) are adopted 24 in full; and 25 ///// 26 ///// 27 ///// 28 ///// 1 2. Defendants’ motion to revoke plaintiffs in forma pauperis status (Doc. No. 33) is 2 denied. 3 | IT IS SO ORDERED. a 7. Dated: _ October 22, 2019 VL AL oye 5 UNITED STATES DISTRICT JUDGE