Freeman v. Foss

Background

Travon Leon Freeman, an incarcerated plaintiff proceeding without a lawyer, brought a civil-rights action under 42 U.S.C. § 1983 concerning events at Salinas Valley State Prison. The order addressed defendants’ motion to dismiss, Freeman’s motion for summary judgment, Freeman’s renewed request for default judgment, Freeman’s eligibility to proceed without paying the filing fee, and service on defendant Paicio.

Motion to dismiss

Defendants Sandquist, Banger, Cervantes, Salgado, and Foss moved to dismiss on the ground that Freeman had not exhausted the administrative remedies required by the Prison Litigation Reform Act. Freeman did not dispute that he had not exhausted the process, but argued that the requirement should be excused because he had alleged imminent danger. The court explained that imminent danger is an exception to the Act’s three-strikes rule, not to its exhaustion requirement.

The court nevertheless treated Freeman’s allegations that prison officials had refused to process a grievance as an argument that administrative remedies were effectively unavailable. Because the second amended complaint did not establish exhaustion failure clearly enough on its face, the court denied defendants’ motion to dismiss without prejudice to renewing it as a motion for summary judgment. The court therefore did not decide whether Freeman had actually exhausted available remedies.

Possible three-strikes issue

Defendants informed the court that another federal court had found Freeman ineligible to proceed without paying the filing fee because he had three qualifying prior dismissals under 28 U.S.C. § 1915(g). The court stated that this eligibility question had to be addressed before proceeding to the merits. It ordered defendants to file, within 28 days, a motion seeking revocation of Freeman’s permission to proceed without paying the filing fee. The order also set deadlines for Freeman’s opposition and defendants’ reply and stated that no hearing would be held.

Freeman’s summary-judgment motion

The court denied Freeman’s motion for summary judgment without prejudice to refiling after it decided whether he could proceed without paying the filing fee or after he paid the filing fee, if necessary.

Renewed default-judgment request

Freeman again sought default judgment, arguing that defendants had not properly responded to his complaint. The court treated the request as a request for permission to seek reconsideration of its earlier order denying entry of default. The court denied Freeman’s request for leave to file a motion for reconsideration.

The court found that Freeman had not shown any of the circumstances required for reconsideration under the applicable local rule. It also concluded that defendants had properly filed a waiver of reply and a jury demand, that defendants had appeared and indicated their intent to defend the action, and that the clerk had not entered default against them. The court therefore stated that default judgment was improper.

Service on Paicio

The U.S. Marshal reported that service on Paicio was unsuccessful because the California Department of Corrections and Rehabilitation could not locate an employee with that name. The court ordered Freeman, within 28 days, either to serve Paicio or to provide enough information to identify and locate Paicio so that the Marshal could complete service. The court stated that failure to comply would result in dismissal of Paicio without prejudice under the rule governing service deadlines.

Disposition

The court denied leave to seek reconsideration of the earlier default ruling; denied defendants’ motion to dismiss without prejudice to renewing it as a motion for summary judgment; denied Freeman’s motion for summary judgment without prejudice to refiling after the filing-fee issue was resolved or the fee was paid, if necessary; ordered defendants to seek revocation of Freeman’s permission to proceed without paying the filing fee; and required Freeman to provide information or complete service on Paicio. Judge Haywood S. Gilliam, Jr. signed the order. The court did not reach the merits of Freeman’s civil-rights claims.