United States District Court

For the Northern District of California

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United States District Court

For the Northern District of California

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

WILL MOSES PALMER, III, 

Plaintiff,

v.

G. R. SALAZAR; et al., 

Defendants. /

No. C 08-5378 SI (pr)

ORDER DENYING MOTIONS TO

DISMISS, STAY AND REVOKE

PAUPER STATUS

INTRODUCTION

Will Moses Palmer, an inmate at Kern Valley State Prison, filed a pro se civil rights

action under 42 U.S.C. § 1983. In his complaint, he alleged that defendants Salazar and Sanchez

violated his right to due process in a disciplinary proceeding against him. The court found the

due process claim cognizable, ordered service on the two defendants, and granted Palmer's in

forma pauperis application. This action is now before the court for consideration of defendants’

motions to revoke in forma pauperis status, to dismiss and to stay this action. 

DISCUSSION

A. Motion To Revoke Pauper Status

Defendants moved the court to revoke Palmer’s pauper status and to dismiss the action

because he has three or more prior strike dismissals. Their motion is based on 28 U.S.C. §

1915(g), which provides that a prisoner may not bring a civil action in forma pauperis under 28

U.S.C. § 1915 "if the prisoner has, on 3 or more prior occasions, while incarcerated or detained

in any facility, brought an action or appeal in a court of the United States that was dismissed on

the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be

granted, unless the prisoner is under imminent danger of serious physical injury." Before

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United States District Court

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searching to determine whether Palmer has enough prior dismissals, the court deals with two

threshold arguments Palmer makes in opposition to the motion. 

Palmer contends that the motion should be denied because the time for defendants to file

a motion to dismiss had expired. This argument fails to persuade. Defendants credibly

explained in their moving papers that they had been delayed in their efforts to obtain the

documents – several of which were from files in the U.S. District Court for the Central District

of California -- needed in support of their motion. More importantly, notwithstanding

defendants’ request to have pauper status revoked and the action dismissed, only the first of

those two things would occur if defendants prevail. If pauper status were revoked, Palmer would

be given time to pay the full filing fee so he could proceed with the action. See Adepegba v.

Hammons, 103 F.3d 383, 388 (5th Cir. 1996). While the case may be dismissed if the motion

is granted and if another event occurs (i.e., non-payment of the fee), the dismissal would not

occur unless and until that second event occurs. 

Palmer next argues that the action should not be dismissed because the claim he asserts

here is the same one he asserted in an earlier action. This argument also fails to persuade

because the claim was premature in the earlier action in that he had not exhausted administrative

remedies at the time he filed the action. The claim was dismissed in the earlier action for failure

to exhaust, and that dismissal was affirmed by the Ninth Circuit. See Order Dismissing Two

Defendants And Granting Summary Judgment In Favor Of Other Defendants in Palmer v.

Hatton, N. D. Cal. No. C 05-358 SI, affirmed, Palmer v. Hatton, Ninth Cir. No. 08-16534. It

would not matter if Palmer had not accumulated three dismissals when he filed that action, if he

had done so by the time he filed this action. Having rejected Palmer's two threshold arguments

against the motion, the court now considers whether there are enough prior dismissals to revoke

pauper status. 

The first action defendants identify as a “strike” dismissal is Palmer v. Johnson, C. D.

Cal. No. 05-8547 ABC. In that action, Palmer had sued a federal magistrate judge for his

allegedly wrongful decision-making in the course of handling Palmer’s earlier petition for writ

of habeas corpus. The action was dismissed upon defendant’s motion, and the basis for the

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In O'Neal v. Price, 531 F.3d 1146 (9th Cir. 2008), the court discussed dismissals of complaints

and denials of in forma pauperis actions as events that counted for purposes of § 1915(g). However, in

none of the strike dismissals examined in that opinion was there a dismissal of a complaint with leave

to amend followed by a request for voluntary dismissal. Each of the orders dismissing a complaint or

denying an in forma pauperis application resulted in the termination of the action. Here, by contrast,

Palmer had the option following the dismissal with leave to amend to pursue the action by amending

his complaint. O'Neal thus does not require this court to count the dismissal with leave to amend the

complaint as a strike dismissal under § 1915(g). 

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dismissal was that the defendant magistrate judge had absolute immunity for every action alleged

in the complaint, notwithstanding Palmer’s apparent assertion that the magistrate judge had acted

in excess of his jurisdiction. See Def. Req. For Judicial Notice, Exh. A. A reading of the order

of dismissal shows that it was a dismissal because the complaint was legally frivolous in that the

defendant had absolute judicial immunity. See Andrews v. King, 398 F.3d 1113, 1121 (9th Cir.

2005) (for § 1915(g) purposes, a case "is frivolous if it is 'of little weight or importance: having

no basis in law or fact'"). This dismissal counts as a strike dismissal for purposes of § 1915(g).

The second action defendants identify as a strike dismissal is Palmer v. Johnson, C. D.

Cal. No. 05-1721 UA. In that action, the magistrate judge recommended that the in forma

pauperis application be denied because Palmer had not submitted the necessary materials and

because the complaint failed to state a claim upon which relief could be granted. Def. Req. For

Judicial Notice, Exh. B. The district judge adopted the recommendation and the case was

terminated a few days later. In light of the determination that the complaint failed to state a

claim upon which relief could be granted, the dismissal counts as a strike dismissal,

notwithstanding the fact that there were additional reasons for the denial of the application.

The third action defendants identify as a strike dismissal is Palmer v. Crawford, N. D.

Cal. No. 03-1271 SI. The complaint was dismissed with leave to amend because it failed to state

a claim upon which relief could be granted. Rather than filing an amended complaint, Palmer

requested a voluntary dismissal. The request was granted and the action was dismissed without

prejudice. For purposes of §1915(g), the court counts dismissals of actions and not dismissals

of complaints.1

 This action was terminated with a voluntary dismissal rather than due to the

failure to state a claim. This action does not count as a strike dismissal. 

The fourth action defendants identify as a strike dismissal is Palmer v. Crawford, N.D.

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Cal. No. 03-956 SI. Like the action in the preceding paragraph, the complaint was dismissed

with leave to amend and Palmer requested a voluntary dismissal rather than amend. The request

was granted and the action was dismissed without prejudice. This action does not count as a

strike dismissal. 

Only two of the cases identified by defendants count as strike dismissals for purposes of

§1915(g). They fall one short of the three dismissals necessary to make Palmer ineligible for

pauper status under § 1915(g). The motion to revoke pauper status and to dismiss therefore is

DENIED. (Docket # 12.) 

B. Motion To Dismiss

Defendants filed a motion to dismiss the complaint because it fails to state the relief

Palmer requests from the defendants, in contravention of Federal Rule of Civil Procedure

8(a)(3), which requires a complaint to include “a demand for the relief sought.” 

After defendants filed their motion to dismiss, plaintiff moved to amend his complaint.

The proposed first amended complaint has new pages 3, 13, 14, and 15, but otherwise appears

to be a photocopy of the original complaint. The first amended complaint has a prayer for relief

at pages 13-14 that seeks damages, declaratory and injunctive relief. The deficiency defendants

identified in the complaint has been resolved by the filing of the first amended complaint.

Defendants’ motion to dismiss is DENIED. (Docket # 9.) Plaintiff’s motion to amend is

DISMISSED as unnecessary; he did not need leave to amend because defendants had not filed

a responsive pleading at the time he submitted his first amended complaint. The clerk will file

the first amended complaint. 

In their motion to dismiss, defendants also requested a stay of further proceedings in this

action pending the resolution of the appeal in another action filed by Palmer because the appeal

concerned the same claim as alleged in this action. After the parties briefed the stay request in

this action, the Ninth Circuit issued its decision affirming the dismissal of the claim (for failure

to exhaust) in the earlier action. See Order Dismissing Two Defendants And Granting Summary

Judgment In Favor Of Other Defendants in Palmer v. Hatton, N. D. Cal. No. C 05-358 SI,

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affirmed, Palmer v. Hatton, Ninth Cir. No. 08-16534. Defendants’ argument that it would be a

waste of resources to proceed in this action until the earlier action was resolved was persuasive

when made, but the point is now moot because the appeal has now concluded. The dismissal of

the claim in Palmer v. Hatton was affirmed. The due process claim in this action can now

proceed. The motion for a stay is DENIED. (Docket # 9.)

CONCLUSION

For the foregoing reasons, defendants’ motions to revoke pauper status, to dismiss and

to stay the proceedings are DENIED. (Docket # 9 and # 12.) Plaintiff’s motion to amend is

DISMISSED as unnecessary. The operative pleading in this action is now plaintiff’s first

amended complaint, received by the court on July 13, 2009. 

In order to expedite the resolution of this case, the following briefing schedule for any

further dispositive motions is set:

a. No later than April 2, 2010, defendants must file and serve a motion for

summary judgment or other dispositive motion. If defendants are of the opinion that this case

cannot be resolved by summary judgment, they must so inform the court prior to the date the

motion is due.

b. Plaintiff's opposition to the summary judgment or other dispositive motion

must be filed with the court and served upon defendants no later than May 7, 2010. Plaintiff

must bear in mind the notice and warning regarding summary judgment from the Order Of

Service as he prepares his opposition to any summary judgment motion

c. If defendants wish to file a reply brief, the reply brief must be filed and

served no later than May 28, 2010.

 IT IS SO ORDERED.

Dated: February 6, 2010 _______________________

 SUSAN ILLSTON

United States District Judge

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