Opinion
No. 1:20-cv-00320-DAD-BAM (PC)
04-14-2020
TRAVON LEON FREEMAN, Plaintiff, v. CHRISTIAN PFEIFFER, Warden; et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS (Doc. Nos. 2, 5)
Plaintiff Travon Leon Freeman is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. 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 March 4, 2020, the assigned magistrate judge issued findings and recommendations, recommending that plaintiff's application to proceed in forma pauperis be denied because he had accumulated at least three "strikes" under 28 U.S.C. § 1915(g) and did not satisfy the section's imminent danger exception. (Doc. No. 5.) Those findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days of service. (Id. at 2-3.) Plaintiff filed timely objections and a "notice" with the court on March 19, 2020. (Doc. Nos. 6, 7.)
Having reviewed the notice, the court will construe it as a part of plaintiff's objections.
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, including plaintiff's objections, the court concludes that the findings and recommendations are supported by the record and proper analysis.
In his objections, plaintiff argues that the magistrate judge erred in finding that he had accumulated at least three prior strike dismissals under § 1915(g), pointing to the decision issued in an earlier case brought by him, Freeman v. Lynch, No. 2:16-cv-0705-MCE-CMK-P, 2018 WL 3388611, at *1 (E.D. Cal. July 12, 2018), findings and recommendations adopted, No. 2:16-cv-0705-MCE-DMC-P, 2018 WL 4409131 (E.D. Cal. Sept. 17, 2018) [hereinafter "Freeman I"]. (Doc. No. 6 at 2.) In that case, a judge of this court in 2018 determined that three of the four cases on which the pending findings and recommendations now relies upon as strike dismissals did not qualify as such under the Ninth Circuit's decision in Williams v. King, 875 F.3d 500 (9th Cir. 2017) because they were orders of dismissal issued by magistrate judges acting without the consent of all parties, whether appearing as of yet in the action or not.
The four cases are: 1) Freeman v. Adams, No. 1:09-cv-02129-SKO (E.D. Cal. April 18, 2011); 2) Freeman v. Julious, No. 1:09-cv-02245-DLB (E.D. Cal. May 6, 2011); 3) Freeman v. Hynse, No. 1:09-cv-02146-GBC (E.D. Cal. Jan. 13, 2012); and 4) Freeman v. Calderon, No. 4:18-cv-06142-HSG (N.D. Cal. May 1, 2019). All four cases were dismissed in their entirety for failure to state a claim.
In Williams, the Ninth Circuit held that a magistrate judge does not have the authority to dismiss a case unless all parties, even ones that had not been served, had consented to magistrate judge jurisdiction. 875 F.3d at 504-05.
However, Freeman I was decided before the decision in Hoffmann v. Pulido, 928 F.3d 1147 (9th Cir. 2019). In Hoffmann the Ninth Circuit specifically rejected the reasoning adopted in Freeman I and relied upon by plaintiff here, holding that in such circumstances a prisoner "cannot escape the consequences of [a] prior judgment"—even where the magistrate judge lacked the authority to dismiss a case under Williams—"through an untimely collateral attack." Hoffmann, 928 F.3d at 1150-51. /////
Plaintiff attempts to sidestep this by arguing that the court is nevertheless estopped from revisiting the issue, having already decided in Freeman I that the three cases in question did not qualify as strikes. However, it has been recognized that even assuming "the core requirements of issue preclusion are met, an exception to the general rule may apply when a change in the applicable legal context intervenes." Von Staich v. Cal. Bd. of Parole Hearings, No. 2:15-cv-1182-JAM-DBP, 2017 WL 2473147, at *2 (E.D. Cal. June 8, 2017), findings and recommendations adopted, No. 2:15-cv-1182-JAM-DBP, 2017 WL 6512135 (E.D. Cal. Dec. 20, 2017) (internal quotation marks omitted) (quoting Bobby v. Bies, 556 U.S. 825, 834 (2009)) (declining to apply issue preclusion to the counting of strikes under § 1915(g)). This is particularly so when applying issue preclusion here would amount to a collateral attack on three judgments as well as a repudiation of the decision in Freeman v. Kernan, No. 2:17-CV-02233-TLN-AC, 2019 WL 4166800, at *1 (E.D. Cal. Sept. 3, 2019), reconsideration denied, No. 2:17-CV-02233-TLN-AC, 2020 WL 564786 (E.D. Cal. Feb. 5, 2020), where another judge of this court determined that the three prior case dismissals in question did in fact qualify as strikes under binding Ninth Circuit precedent as announced in Hoffman.
Plaintiff asserts that res judicata, collateral estoppel, claim preclusion, and issue preclusion all apply. (Doc. No. 6 at 3.) Given the circumstances, plaintiff appears to be invoking the doctrine of collateral estoppel, also known as issue preclusion. --------
Therefore, the undersigned concludes that the magistrate judge properly identified the three prior case dismissals suffered by plaintiff as strikes under § 1915(g).
Accordingly:
1. The findings and recommendations issued on March 4, 2020 (Doc. No. 5) are adopted in full;
2. In accordance with 28 U.S.C. § 1915(g), plaintiff's application to proceed in forma pauperis (Doc. No. 2) is denied;
3. Within twenty-one (21) days following service of this order, plaintiff shall pay the $400.00 filing fee in full in order to proceed with this action or face dismissal of this case; and
4. The matter is referred back to the assigned magistrate judge for proceedings consistent with this order.IT IS SO ORDERED.
Dated: April 14 , 2020
/s/_________
UNITED STATES DISTRICT JUDGE