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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LEE ANDREW REED,

Plaintiff, No. CIV S-04-0936 LKK GGH P

vs.

S. HAFERKAMP, et al., ORDER AND

Defendants. FINDINGS & RECOMMENDATIONS

 /

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to

42 U.S.C. § 1983. Pending before the court is defendants’ June 30, 2006, motion to dismiss,

motion for stay and request for extension of time to file a dispositive motion. Although plaintiff

has not opposed defendants’ motions, the court recommends that the motion to dismiss and

motion to stay be denied.

Defendants move to dismiss pursuant to 42 U.S.C. § 1915(g) which provides, in

relevant part, that no prisoner shall bring a civil rights action if the prisoner has, on 3 or more

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

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

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

/////

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Defendants state that plaintiff has brought three or more cases that were dismissed

as frivolous, malicious or for failing to state a claim. Defendants state that these cases are

attached as exhibit A, although no exhibits are attached to defendants’ motion.

Plaintiff filed the original complaint on May 13, 2004. On December 22, 2004,

defendants filed a motion to dismiss. On April 4, 2005, the court granted defendants’ motion to

dismiss with leave to amend. On September 6, 2005, defendants filed an answer to the amended

complaint filed July 7, 2005. On January 20, 2006, the court issued a scheduling order setting the

pretrial motion cut-off date for June 30, 3006. On June 30, 2006, defendants filed the pending

motion. 

A § 1915(g) motion is procedurally akin to a motion to compel arbitration in that

both involve threshold issues not on the merits which should be resolved prior to the expenditure

of resources by the court and parties. Federal courts have held that a waiver may be found under

the Federal Arbitration Act if there is “(1) knowledge of an existing right to compel arbitration;

(2) acts inconsistent with that existing right; and (3) prejudice to the party opposing arbitration

resulting from such inconsistent acts.” Britton v. Co-op Banking Group, 916 F.2d 1405, 1412

(9 Cir. 1990). th

Because the issues of § 1915(g) and arbitration are analogous in that they both

involve threshold issues, the court will apply the standard set forth above in order to determine

whether defendants waived their right to bring a § 1915(g) motion.

The information in support of defendants’ motion was obviously available at the

time defendants first appeared in this action. In the motion, defendants state that they did not

bring this motion sooner because current counsel, assigned to this action in April 2006, only

recently discovered plaintiff’s litigation history. The diligence of current counsel does not

excuse defendants’ failure to bring a timely § 1915(g) motion.

As discussed above, defendants previously brought a motion to dismiss for failure

to state a claim. This action was inconsistent with an intent to bring a motion on a threshold

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issue like § 1915(g). The fact that defendants did not raise this issue until the last day of the pretrial motion cut-off deadline also demonstrated an intent not to bring such a motion. 

As to the issue of prejudice, it is not so much plaintiff who is prejudiced by

defendants’ failure to bring this motion sooner as it is the court. Considerable resources have

been spent by the court in this action which has been pending for over two years. Defendants’

lack of diligence in bringing the pending motion should not be rewarded.

For the reasons discussed above, the court finds that defendants have waived their

right to bring a motion pursuant to § 1915(g). Accordingly, this motion should be denied. 

Defendants’ motion to stay this action pending resolution of their motion should be denied as

unnecessary. The court will grant defendants an extension of time to file a summary judgment

motion.

Accordingly, IT IS HEREBY ORDERED that:

1. Defendants’ June 30, 2006, request for an extension of time to file a

dispositive motion is granted; defendants may file a summary judgment motion within thirty days

of the date of this order;

2. The pretrial conference set for October 27, 2006, and the jury trial set for

January 16, 2007, in front of the Honorable Lawrence K. Karlton are vacated; and

IT IS HEREBY RECOMMENDED that defendants’ June 30, 2006, motion to

dismiss and motion to stay be denied.

These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned 

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised 

\\\\\

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that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

DATED: 10/17/06

/s/ Gregory G. Hollows

 

GREGORY G. HOLLOWS

re936.57 UNITED STATES MAGISTRATE JUDGE

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