Larkin v. Cabraser
- Haywood Gilliam
- 4:24-cv-00190
- U.S. District Court · Northern District of California
- 8
In Larkin v. Cabraser, Judge Gilliam reopened the case, vacated its dismissal and judgment, required an explanation about fee waiver, and denied early service.
Billy F. Larkin, who was representing himself while incarcerated, and the attorneys and law firms named as defendants. The case was reopened, but the court had not yet decided whether Larkin could proceed without paying the filing fee or whether the complaint could proceed.
What happened
In Larkin v. Cabraser, Billy F. Larkin, a prisoner representing himself, filed claims against attorneys and law firms concerning the denial of his claim under the Deepwater Horizon settlement. The court had previously dismissed the case because he had not paid the filing fee or submitted a complete application to proceed without paying it.
The court granted Larkin’s request to reopen the case and vacated the earlier dismissal and judgment. But it found that at least three of his earlier cases counted as qualifying dismissals under the prisoner three-strikes rule. The court ordered him to explain within 28 days why his request to proceed without paying the filing fee should not be denied, finding that his complaint did not allege an imminent danger of serious physical injury.
Judge Haywood S. Gilliam, Jr. denied Larkin’s request for the United States Marshal to serve the defendants because service would be premature. The court said it would consider screening the complaint only if Larkin is allowed to proceed without paying the fee, and warned that failure to respond to the order could result in dismissal.
The detailed version
- Larkin v. Cabraser · No. 4:24-cv-00190
- Haywood Gilliam
- Mar. 12, 2024
Background
Billy F. Larkin filed this action while incarcerated and representing himself. The complaint names approximately 22 attorneys and law firms, along with unidentified attorneys and firms. It alleges that the defendants were involved in the Deepwater Horizon Economic and Property Settlement and committed fraud, legal malpractice, and breach of the settlement agreement, causing the termination of Larkin’s claim for monetary recovery.
The court had dismissed the action and entered judgment because Larkin had not paid the filing fee or submitted a complete application to proceed without paying it. Larkin later filed an application but did not include a required prison account certificate or a six-month transaction statement. He reported that he had repeatedly asked prison officials for those documents and was told that the court had to request them.
Reopening the Case
The court treated Larkin’s filing as both a request to proceed without paying the filing fee and a request to reopen the case. It also treated his other filing as a request to excuse the missing supporting documents. Finding good cause, the court granted the request to reopen, directed the Clerk to vacate the earlier order of dismissal and related judgment, and reopened the case.
Three-Strikes Issue
The Prison Litigation Reform Act generally prevents a prisoner from proceeding without paying the filing fee if the prisoner has had three or more prior federal cases dismissed as frivolous, malicious, or for failure to state a claim, unless the prisoner faced imminent danger of serious physical injury when the new complaint was filed. Such qualifying dismissals are commonly called strikes.
The court found that at least three of Larkin’s prior cases qualified as strikes. The court concluded that the current complaint did not allege, and could not plausibly allege, that Larkin faced imminent danger of serious physical injury connected to the defendants’ alleged role in denying his settlement claim. The court therefore ordered Larkin to show cause within 28 days why his request to proceed without paying the filing fee should not be denied under the three-strikes provision. The court did not make a final ruling in this order denying that request.
The court also noted that the current action appeared duplicative of an earlier related proceeding involving Larkin’s inability to recover on a Deepwater Horizon claim and might therefore later be subject to dismissal. That statement was not a final dismissal of the current action.
Service Request and Disposition
Larkin asked the court to order the United States Marshal to serve the defendants. The court denied that request as premature. It explained that service would be ordered only if Larkin were allowed to proceed without paying the filing fee and if the complaint stated claims that could proceed. The court stated that it would not screen the complaint unless Larkin received permission to proceed without paying the fee.
The court granted the request to reopen, vacated the earlier dismissal and judgment, ordered Larkin to show cause regarding the filing-fee application, and denied the request for Marshal service. It warned that failure to respond to the show-cause order as directed would result in dismissal under Rule 41(b) for failure to comply with a court order.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.