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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 GREGORY SPATCHER, Case No. 5:20-cv-01705-DSF-KES

12 Plaintiff, ORDER TO SHOW CAUSE WHY 13 v. COMPLAINT SHOULD NOT BE

14 J. RIVERA, et al., DISMISSED FOR FAILING TO PAY FILING FEE AND 15 Defendants. (1) FAILING TO QUALIFY FOR IFP;

16 OR (2) VIOLATING RULE 11 17

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19 I.

20 BACKGROUND 21 Plaintiff Gregory Spatcher (“Plaintiff”) filed a civil rights lawsuit against 22 staff members at the California Institute for Men in Chino alleging that they 23 violated his First, Eighth, and Fourteenth Amendment rights by (1) placing him 24 with “special needs” inmates and then failing to protect him from inmates who 25 threatened and assaulted him, (2) failing to process his grievances about assaults, 26 illegal drug use, and sexual activity within his housing unit, (3) failing to provide an 27 adequate diet accounting for his food allergies, (4) failing to provide adequate 28 1 mental health care, and (5) denying access to the courts by failing to provide 2 writing materials and thwarting exhaustion efforts by inaction. 3 The Complaint was accompanied by an application to waive the filing fee 4 and proceed in forma pauperis (“IFP”). (Dkt. 2.) 5 II. 6 PLAINTIFF APPEARS TO HAVE 3 STRIKES 7 Under the PLRA, a prisoner is prohibited from proceeding IFP if, while 8 incarcerated, he has on three or more occasions brought an action that was 9 dismissed on the grounds that it was frivolous, malicious, or fails to state a claim 10 upon which relief may be granted.

(g). When reviewing a 11 dismissal to determine whether it counts as a strike, “the style of the dismissal or 12 the procedural posture is immaterial. Instead, the central question is whether the 13 dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” 14 El-Shaddai v. Zamora,

(9th Cir. 2016) (citation omitted). 15 The Court has reviewed Plaintiff’s litigation history and identified the 16 following cases from the Southern District of California: 17 A. Spatcher v. San Diego Sheriff Dep’t, case no. 19-cv-1919-BAS-BLM 18 The district court authorized service on two defendants but dismissed the 19 case after Plaintiff failed to respond to a court order seeking a service status update. 20 See Spatcher v. San Diego Sheriff Dep’t,

(S.D. Cal. 21 Aug. 13, 2020). 22 This is not a strike under the PLRA, because the dismissal was not based on a 23 finding that Plaintiff failed to state a claim. 24 B. Spatcher v. Baird, case no. 19-cv-1936-BAS-MSB 25 The district court dismissed the complaint for failure to state a claim with 26 leave to amend then dismissed the case for failure to prosecute after Plaintiff did 27 not amend. See Spatcher v. Baird,

(S.D. Cal. Jan. 28 23, 2020). 1 This is Strike One. See Harris v. Mangum,

(9th Cir. 2 2017) (“His failure to file an amended complaint did not negate the determination 3 already made by the court that the complaint that he had filed, and on which he 4 effectively elected to stand, failed to state a claim. It also does not matter whether 5 the dismissals were with or without prejudice.”). 6 C. Spatcher v. City of Oceanside, case no. 3:19-cv-2281-JAH-RBM 7 The district court dismissed the complaint as “frivolous” and duplicative of 8 Spatcher v. Baird. See Spatcher v. City of Oceanside,

25326 (S.D. Cal. Feb. 13, 2020). 10 A prisoner’s complaint is considered frivolous if it “merely repeats pending 11 or previously litigated claims.” Cato v. United States,

, 1105 n.2 (9th 12 Cir. 1995) (construing former

(d)). Other district courts have 13 found that dismissals of duplicative complaints constitute strikes. See, e.g., Gipbsin 14 v. Roth, No. 2:18-cv-03164-CKD,

, at *6 (E.D. Cal. 15 July 29, 2020) (“the dismissal of the second claim as duplicative counts as a 16 strike”); Ware v. Archuleta, No. 3:19-cv-01476-GPC-MSB,

172317, at *4 (S.D. Cal. Oct. 3, 2019) (counting dismissal as “strike one” where 18 order dismissed complaint as “duplicative/malicious”); Saunders v. Saunders, No. 19 CV-05-00699-TUC-RCC,

, at *10 (E.D. Cal. Aug. 20 7, 2013) (“The Court finds this dismissal constitutes a strike because the duplicative 21 action was frivolous – it stated the same claims as another action Plaintiff had 22 already filed and was pending before a magistrate judge.”); Heggem v. Lopin, No. 23 C11-2123-RSL-JPD,

, at *11 (W.D. Wash. Apr. 24, 24 2012) (recommending that dismissal of duplicative suit be considered a PLRA 25 strike). 26 Here, Plaintiff’s duplicative filings do not appear to be the result of mere 27 inadvertence. See Staich v. Cal. Bd. of Parole Hearings, No. 2:15-cv-1182 JAM 28 DB P,

, at *11 (E.D. Cal. June 7, 2017) (“This court 1 finds plaintiff’s filing of this action shortly after the denial … of a prior identical 2 action was frivolous.”). The dismissing court considered the duplicative action 3 frivolous. This dismissal, therefore, rings the bell of frivolity and counts as Strike 4 Two. 5 D. Spatcher v. City of Oceanside, case no. 3:20-cv-1554-LJS-WVG 6 The Court again dismissed the complaint as “frivolous” and duplicative of 7 Spatcher v. Baird. See Spatcher v. City of Oceanside,

155161 (S.D. Cal. Aug. 26, 2020). 9 For the same reasons discussed for case no. 3:19-cv-2281-JAH-RBM, this 10 dismissal counts as Strike Three. 11 E. Spatcher v. Gore 20-1089, case no. 3:20-cv-01089-JAH-LL 12 This lawsuit was filed in June 2020 along with an IFP application that 13 remains pending as of the date of this Order. In that complaint, like the instant 14 action, Plaintiff represented that he had only filed one prior federal case. 15 This lawsuit is not a strike, because it has not been dismissed. 16 III. 17 PLAINTIFF APPEARS TO HAVE MISPRESENTED 18 HIS LITIGATION HISTORY 19 By signing and presenting a pleading to the court, an unrepresented party 20 certifies that to the best of the person’s knowledge, the facts stated therein are true 21 and have evidentiary support. Fed. R. Civ. P. 11(b)(3). On its own initiative, the 22 Court may order a party to show cause why he or she has not violated this rule. 23 Fed. R. Civ. P. 11(c)(3). The Court may impose “an appropriate sanction” upon 24 finding a violation. Fed. R. Civ. P. 11(c)(1). 25 Here, the Complaint states that Plaintiff filed “1” other lawsuit in federal 26 court while in custody. (Dkt. 1 at 1.) He identifies that prior lawsuit as S.D. Cal. 27 case no. 19-cv-1919-BAS-BLM. (Id. at 2.) He signed the Complaint and dated it 28 August 13, 2020. (Id. at 10.) 1 As of August 13, 2020, however, Plaintiff had filed at least five prior federal 2 | lawsuits, as listed above. The lawsuits were filed in 2019 and 2020, making them 3 || all recent enough to remember. Plaintiff did not merely overlook one earlier 4 | lawsuit, but failed to list four earlier lawsuits. Two earlier lawsuits for which 5 | Plaintiff was granted IFP status appear on his prison trust account statement. (Dkt. 6 || 2 at4.) 7 The Central District’s “form” complaint for self-represented civil rights 8 || litigants asks about prior litigation, in part, to evaluate the plaintiff’s eligibility 9 | under the PLRA to proceed IFP. A district court may deny permission to proceed 10 | IFP as a sanction for violating Rule 11 by mispresenting one’s litigation history. 11 | See Bell v. Dikin, No. 1:10-cv-01346-OWW-GBC (PC),

| 157581, at *2 (E.D. Cal. June 8, 2011) (dismissing case after “the Magistrate Judge 13 | issued an order to show cause as to why this action should not be dismissed due to 14 | Plaintiffs violation of rule 11(b)(3)” and the District Judge found “the 15 | misrepresentation of previous litigation would be the basis of finding a Rule 16 | 11(b)(3) violation’). 17 IV. 18 ORDER TO SHOW CAUSE 19 IT IS THEREFORE ORDERED that, on or before September 30, 2020, 20 | Plaintiff is ordered to show cause in writing, if any he has, why his IFP application 21 | should not be denied and his lawsuit dismissed for failure to pay the filing fee 22 | because (1) he has three PLRA strikes, and/or (2) he misrepresented his litigation 23 | history in violation of Rule 11(b)(3). 24 oy 25 | DATED: August 27, 2020 Nr Scott ? KAREN E. SCOTT 4 UNITED STATES MAGISTRATE JUDGE

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