(PC) Martinez v. Secretary of California Department of Corrections and Rehabilitation

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8 UNITED STATES DISTRICT COURT

9 EASTERN DISTRICT OF CALIFORNIA

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11 CARLOS MARTINEZ, A.K.A., PEDRO Case No. 1:22-cv-1170 JLT GSA (PC)

SAUCEDO CALDERON,

12 ORDER ADOPTING FINDINGS AND

Plaintiff, RECOMMENDATIONS, REVOKING

13 PLAINTIFF’S IN FORMA PAUPERIS

v. STATUS, AND DIRECTING PLAINTIFF TO

14 PAY THE FILING FEE WITHIN 30 DAYS

SECRETARY OF CALIFORNIA

15 DEPARTMENT OF CORRECTIONS (Doc. 33)

AND REHABILITATION, et al.,

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Defendants.

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18 Carlos Martinez, also known as Pedro Saucedo Calderon, asserts that he suffered

19 violations of his civil rights while incarcerated at Valley State Prison. (See Doc. 14.) For the

20 reasons set forth below, Plaintiff’s in forma pauperis status is REVOKED and he shall pay the

21 filing fee to proceed with this matter.

22 I. Background

23 The Court granted Plaintiff’s request to proceed in forma pauperis shortly after he

24 initiated this action in September 2022. (Doc. 6.) However, the Court recently learned that

25 Plaintiff filed other actions in the Central District of California—which Plaintiff did not identify

26 in his initial complaint listing prior actions (see Doc. 1 at 2)—and the dismissals by the Central

27 District qualify as strikes under 28 U.S.C. § 1915(g). Accordingly, the magistrate judge ordered

28 Plaintiff to show cause why his in forma pauperis status should not be revoked. (Doc. 29.) After

1 receiving Plaintiff’s response, the magistrate judge issued Findings and Recommendations,

2 recommending the Court revoke Plaintiff’s in forma pauperis status. (Doc. 33.)

3 II. Findings and Recommendations

4 The magistrate judge found Plaintiff had at least three cases that qualify as strikes under

5 Section 1915(g), including:

6 1. Martinez v. California Dept. of Corrections and Rehabilitation,

Case No. 2:08-cv-01488 UA AJW (C.D. Cal. Mar. 28, 2008) (denial of

7 request to proceed IFP denied for failure to state a claim);

8 2. Martinez v. Director, California Dept. of Corrections and

Rehabilitation, Case No. 2:09-cv-07155 UA AJW (C.D. Cal. Oct. 14,

9 2009) (request to proceed IFP denied for failure to state a claim); and

10 3. Martinez v. San Juan, Case No. 1:21-cv-00146 DAD EPG (E.D.

Cal. June 10, 2021) (dismissal for failure to state a claim).

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12 (See Doc. 33 at 5.) The magistrate judge also observed that Calderon v. Roe, Case No. 2:99-cv-

13 05238 UA (C.D. Cal. Aug. 17, 2000), “is also likely a strike under Section 1915(g)… because in

14 it, Plaintiff’s request to proceed in forma pauperis was denied because Plaintiff had failed to

15 exhaust his administrative remedies prior to filing in the CACD.” (Id. at 5, n.2.) The magistrate

16 judge found each of the identified cases were dismissed prior to the filing of the current matter,

17 and as a result Plaintiff qualified as “a three strikes litigant [who] is required to pay the filing fee

18 in full, unless at the time he brought he instant action before this Court, he made an adequate

19 showing that he was in imminent danger of serious physical harm.” (Id. at 6.)

20 The magistrate judge reviewed the allegations of Plaintiff’s initial complaint and found the

21 claims raised involved a falsified rules violation report. (Doc. 33 at 6-7.) The magistrate found

22 Plaintiff did not identify a physical injury that resulted from the alleged falsified report, and did

23 not show imminent danger of serious physical harm. (Id. at 7.) Furthermore, the magistrate judge

24 found Plaintiff’s response to the order to show cause did not counter the three-strikes

25 determination or show the exception to Section 1915(g) applies. (Id. at 7-8.) Therefore, the

26 magistrate judge recommended the Court revoke Plaintiff’s in forma pauperis status and order

27 Plaintiff to pay the filing fee in full to proceed with this action. (Id. at 8.)

28 ///

1 III. Objections

2 Plaintiff filed objections to the Findings and Recommendations, raising seven enumerated

3 objections. (Doc. 34 at 1-7.) First, Plaintiff contends the magistrate judge committed “clear

4 errors by presiding and deciding matters concerning this action without the consent of the

5 parties…” (Id. at 1-2.) He asserts the Court thus should “set aside all the orders and findings that

6 the magistrate has decided and … assign the case to any other available magistrate judge….” (Id.

7 at 2.) Second, Plaintiff asserts that the magistrate judge also “was powerless to review his

8 decision from September 22, 2022, granting IFP to Plaintiff as conclusive and preclusive final

9 judgment under either … judicial estoppel, collateral estoppel, equitable estoppel, issue

10 preclusion, res judicata, law of the case, or apply the Full Faith and Credit Clause of the U.S.

11 Constitution, Art. IV, Section 1.” (Id. at 3.) Third, Plaintiff asserts the Court should “set aside”

12 the conclusion that he has three strikes, “because Plaintiff cannot tell or challenge from the

13 record” whether the identified Central District matters qualify as strikes. (Id. at 4.) Fourth,

14 Plaintiff asserts the dismissal in Calderon v. Roe was not a strike, “because there is no []clear and

15 unequivocal evidence that Roe was denied or dismissed … [under] any ground listed in Section

16 1915(g).” (Id. at 5.) Fifth, Plaintiff contends the dismissals from the Central District also should

17 not count as strikes because the court did not “show[] the substance of [the] denials” of his IFP

18 requests. (Id. at 5-6.) Sixth, Plaintiff asserts the magistrate judge erred by imposing a page limit

19 and prohibiting exhibits for the objections, because this “violates Plaintiff’s First, Fifth, and

20 Seventh Amendments [rights]….” (Id. at 6.) Seventh, Plaintiff argues the magistrate judge

21 demonstrated “implicit and explicit bias” in this action. (Id. at 7; see also id. at 6-11.) He

22 ultimately requests the Court “set aside” the findings of the magistrate judge, including all orders

23 issued by the magistrate judge. (See id. at 11.)

24 IV. Discussion and Analysis

25 A district judge may “accept, reject or modify, in whole or in part, the findings and

26 recommendations...” 28 U.S.C. § 636(b)(1). If a party files objections, “the court shall make a de

27 novo determination of those portions of the report or specified proposed finding or

28 recommendations to which objection is made.” Id. A de novo review requires the Court to

1 “consider[] the matter anew, as if no decision had been rendered.” Dawson v. Marshall, 561 F.3d

2 930, 932 (9th Cir. 2009).

3 A. Authority of the magistrate judge

4 As an initial matter, Plaintiff’s consent was not required for the magistrate judge to take

5 action in this case. A magistrate judge is vested with the authority “to hear and determine any

6 pretrial matter pending before the court” except motions “for injunctive relief, for judgment on

7 the pleadings, for summary judgment, to dismiss or quash an indictment or information made by

8 the defendant, to suppress evidence in a criminal case, to dismiss or to permit maintenance of a

9 class action, to dismiss for failure to state a claim upon which relief can be granted, and to

10 involuntarily dismiss an action.” 28 U.S.C. 636(b)(1). Even with excepted and dispositive

11 matters, a magistrate judge may “submit to a judge of the court proposed findings of fact and

12 recommendations” to the district judge without the parties’ consent. 28 U.S.C. 636(b)(1)(B).

13 The magistrate judge did not issue dispositional order, or act beyond the scope of his

14 authority. Thus, the magistrate judge did not act improperly in addressing Plaintiff’s in forma

15 pauperis status and issuing the pending Findings and Recommendations. See 28 U.S.C.

16 636(b)(1)(B); see also Gallegos v. Cal. Dep’t of Corr. & Rehab., 2023 WL 3168360, at *1 (E.D.

17 Cal. Apr. 28, 2023) (“plaintiff’s purported ‘declination’ to magistrate judge jurisdiction has no

18 impact on the assigned magistrate judge’s authority to issue findings and recommendations ….”).

19 Plaintiff’s objections related to consent and the authority of the magistrate judge are unavailing.

20 B. Review of IFP status

21 Plaintiff contends the order granting IFP status was a “final judgment” and revocation of it

22 violates his constitutional rights, as well as several legal doctrines. (Doc. 34 at 3.) However, as

23 the Ninth Circuit explained, “IFP status is not a constitutional right.” Rodriguez v. Cook, 169

24 F.3d 1176, 1180 (9th Cir. 1999); see also Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965)

25 (proceeding IFP “is a privilege not a right”). Contrary to Plaintiff’s assertions, permission to

26 proceed IFP is not “final” and “courts have the discretion to revoke that privilege.” Treff v.

27 Galetka, 74 F.3d 191, 197 (10th Cir. 1996) (citation omitted). “An inmate’s in forma pauperis

28 status may be revoked at any time if the court, either sua sponte or on a motion, determines that

1 the status was improvidently granted.” Smith v. Fresno Cnty. Jail, 2025 WL 401181 (E.D. Cal.

2 Jan. 21, 2025) (citations omitted, emphasis added). Because the Court is entitled to review a

3 plaintiff’s IFP status sua sponte, the objection on this ground is without merit.

4 C. Page limit

5 Plaintiff contends the magistrate judge erred by imposing a page limit on his objections.

6 (Doc. 34 at 6.) Notably, “[i]t is not uncommon for courts to impose page limits, even for

7 pleadings.” Gjovik v. Apple Inc., 2024 WL 5049090, at *1 (N.D. Cal. Nov. 20, 2024). “Page

8 limits promote judicial economy and ‘encourage litigants to hone their arguments and to eliminate

9 excessive verbiage.’” Lacomba v. Eagle Home Loans & Inv. LLC, 2023 WL 6201597, at *1 (E.D.

10 Cal. Sept. 21, 2023) (quoting Fleming v. County of Kane, 855 F.2d 496, 497 (7th Cir. 1988)

11 (citation omitted)). Moreover, courts have concluded that page limits do not violate a litigant’s

12 constitutional rights. Watts v. Thompson, 116 F.3d 220, 224 (7th Cir. 1997) (“[e]nforcing page

13 limits and other restrictions on litigants is [a] rather ordinary practice” that does not violate due

14 process”); Brooks v. Colo. Dept’ of Corr., 762 Fed. Appx. 551, 555 (10th Cir. 2019) (finding a

15 page limit imposed by the district court did not violate the plaintiff’s constitutional rights); Lewis

16 v. Florida Dep’t of Corr., 739 Fed. Appx. 585, 585 (11th Cir. 2018) (rejecting “as frivolous” the

17 argument that a page limit was unconstitutional). Therefore, Plaintiff’s assertion that the page

18 limit violated his constitutional rights is unavailing.

19 As the Ninth Circuit explained, judicial “resources are limited. In order to give fair

20 consideration to those who call upon us for justice, we must insist that parties not clog the system

21 by presenting … a slubby mass of words rather than a true brief.” N/S Corp. v. Liberty Mut. Ins.

22 Co., 127 F.3d 1145, 1146 (9th Cir. 1997). Towards this end, courts impose various sanctions for

23 failure to comply with the imposed limits, including striking a brief entirely or declining to

24 consider pages beyond the limit. See Swanson v. U.S. Forest Serv., 87 F.3d 339, 345 (9th Cir.

25 1996) (affirming the district court’s decision to strike a brief that did not comply with the page

26 limit); King Cnty. v. Rasmussen, 143 F.Supp.2d 1225 (W.D. Wash. 2001) (striking only the

27 portion of the filing that exceeded local rule page limitation), aff’d, 299 F.3d 1077 (9th Cir. 2002).

28 Consistent with this, the Court exercises its discretion to disregard the exhibits—including

1 LexisNexis summaries of the Central District’s dockets—that caused Plaintiff’s objections to

2 exceed the page limit imposed. See N/S Corp., 127 F.3d at 1146; Swanson, 87 F.3d at 345.

3 D. Qualifying strikes

4 Title 28 U.S.C. § 1915(g) is part of the Prison Litigation Reform Act, which was intended

5 to address the overwhelming number of lawsuits by prisoners and eliminate frivolous actions. See

6 Lomax v. Ortiz-Marquez, 590 U.S. 595, 597 (2020) (the PLRA was enacted “[t]o help staunch a

7 ‘flood of nonmeritorious’ prisoner litigation”) (citation omitted). Under the PLRA, “the term

8 ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted

9 of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and

10 conditions of parole, probation, pretrial release, or diversionary program.” 28 U.S.C. § 1915(h).

11 Pursuant to the “Three Strikes” provision of the PLRA:

12 In no event shall a prisoner bring a civil action or proceeding under

this section if the prisoner has, on 3 or more prior occasions, while

13 incarcerated or detained in any facility, brought an action or appeal in

the United States that was dismissed on grounds that it was frivolous,

14 malicious, or fails to state a claim upon which relief may be granted,

unless the prisoner is under imminent danger of serious physical

15 injury.

16 28 U.S.C. § 1915(g). To determine whether a dismissal qualifies as a strike “the reviewing court

17 looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d

18 1106, 1109 (9th Cir. 2013).

19 As noted above, the magistrate judge found Plaintiff had three strikes with the dismissals

20 in the following actions: (1) Martinez v. Cal. Dep’t. of Corrections and Rehabilitation, Case No.

21 2:08-cv-01488 UA AJW (C.D. Cal. Mar. 28, 2008); (2) Martinez v. Director, Cal. Dept. of

22 Corrections and Rehabilitation, Case No. 2:09-cv-07155 UA AJW (C.D. Cal. Oct. 14, 2009); and

23 (3) Martinez v. San Juan, Case No. 1:21-cv-00146 DAD EPG (E.D. Cal. June 10, 2021).1

24 Plaintiff concedes the dismissal in San Juan was a strike. (Doc. 34 at 11.) However, he

25 maintains this was his only strike, and the Court should not count the dismissals in the matters

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1 The records of court proceedings cannot reasonably be questioned, and judicial notice may be taken of the Court's

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record and docket. Mullis v. U.S. Bank. Ct., 828 F.2d 1385, 1388 n.9 (9th Cir. 1987); Valerio v. Boise Cascade Corp.,

80 F.R.D. 626, 635 n. 1 (N.D.Cal.1978), aff'd, 645 F.2d 699 (9th Cir. 1981). Therefore, the Court takes judicial

28 notice of the dockets in three identified actions, including the recommendations and orders issued by the courts.

1 before the Central District. (Id. at 4-6.)

2 In Martinez v. Cal. Dep’t. of Corrections and Rehabilitation, Case No. 2:08-cv-01488 UA

3 AJW (C.D. Cal. Mar. 28, 2008), the court screened Plaintiff’s civil rights complaint in connection

4 with his application to proceed IFP. (Case No. 2:08-cv-01488, Doc. 3 at 1.) The court observed

5 the CDCR was the only defendant named in the caption but found the CDCR had immunity under

6 the Eleventh Amendment. (Id., citing, e.g., Idaho v. Cour d’Alene Tribe of Idaho, 521 U.S. 261,

7 267-278 (1997).) The court also found Plaintiff’s claims were barred under Edwards v. Balisok,

8 520 U.S. 641, 648 (1997) and Heck v. Humphrey, 512 U.S 477, 486-487 (1994). (Id.) Thus, the

9 court concluded the complaint should be dismissed for “[f]ailure to state a claim upon which

10 relief may be granted.” (Id, citing 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) [emphasis

11 omitted].) Notably, Section 1915(e)(2)(B)(ii) provides that a “court shall dismiss the case at any

12 time if the court determines that … the action … fails to state a claim on which relief may be

13 granted.” Similarly, Section 1915A(b)(1) indicates dismissal is appropriate for a complaint that

14 “is frivolous, malicious, or fails to state a claim upon which relief may be granted.” Contrary to

15 Plaintiff’s assertions, the court explicitly determined Plaintiff failed to state a claim and explained

16 its findings, including Eleventh Amendment immunity and that the claims raised were barred.

17 The court adopted the findings and recommendations, denied Plaintiff’s request to proceed IFP,

18 and terminated the case on March 28, 2008. (Id.; see also Doc. 4 at 1.) Based upon the findings

19 of the Central District, the case termination qualifies as a strike under Section 1915(g). See El-

20 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (dismissal based on a denial of IFP

21 status qualifies as a strike when “the denial of IFP status [is] based on one of the enumerated

22 grounds” in Section 1915(g)); see also Washington v. Los Angeles County Sheriff's Department,

23 833 F.3d 1048, 1055 (9th Cir. 2016) (when it “is obvious from the face of a complaint” that an

24 action is barred by Heck, dismissal of the case qualifies as a strike for failure to state a claim).

25 In Martinez v. Director, Cal. Dept. of Corrections and Rehabilitation, Case No. 2:09-cv-

26 07155 UA AJW (C.D. Cal. Oct. 14, 2009), the court screened Plaintiff’s claims due to his request

27 to proceed IFP. (Case No. 2:09-cv-07155, Doc. 2.) The record again contradicts Plaintiff’s claim

28 that the Central District did not explain its denial of his application to proceed IFP. The court

1 noted that Plaintiff was “attempting to sue state prison officials for damages and declaratory relief

2 for violating his Fourteenth Amendment due process rights” related to an assessment of

3 “unfavorable classification points.” (Id.) The Court found Plaintiff did not allege facts sufficient

4 to support a conclusion that he had a protected liberty interest and suffered a violation of his due

5 process rights. (Id., citing Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). The Court

6 concluded: “plaintiff’s allegations do not state a facially plausible claim demonstrating that he is

7 entitled to relief.” (Id., citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009), Bell Atlantic Corp.

8 v. Twombly, 550 U.S. 544, 555-556, 570 (2007).) Therefore, the magistrate judge recommended

9 Plaintiff’s application to proceed IFP be denied for “[f]ailure to state a claim upon which relief

10 may be granted.” (Id, citing 28 U.S.C. §§ 1915(e)(2)(B)(ii), 1915A(b)(1) [emphasis omitted].)

11 The court adopted the findings and recommendation, denied his IFP request, and terminated the

12 action on October 9, 2009. (Id.) Again, the Central District clearly found Plaintiff failed to state

13 a cognizable claim, which resulted in the denial of the IFP request and case termination. This also

14 qualifies as a strike under Section 1915(g). See El-Shaddai, 833 F.3d at 1042.

15 Because the dismissals in Case Nos. 2:08-cv-01488 and 2:09-cv-07155 qualify as

16 strikes—and Plaintiff concedes the dismissal by this Court in Martinez v. San Juan, Case No.

17 1:21-cv-00146 DAD EPG also qualified as a strike—the Court finds the magistrate judge did not

18 err in finding Plaintiff had three strikes under Section 1915(g).2

19 E. Alleged bias

20 Plaintiff contends that the magistrate judge exhibited “implicit and explicit bias” against

21 him and requests re-assignment of the matter. (Doc. 34 at 7; id. at 11.) Plaintiff bases his

22 assertions of bias upon the rulings and actions of the magistrate judge in this case. (See id. at 6-

23 11.) Disagreements with the Court’s rulings do not support either assertions of bias or a request

24 for disqualification of a judge, because assertions of bias must be predicated upon an extrajudicial

25 source. See Liteky v. United States, 510 U.S. 540, 553 (1994) (“judicial rulings alone almost

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2 For this reason, the Court declines to address Plaintiff’s objections related to the dismissal of Calderon v. Roe

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qualifying as a strike. Nevertheless, the Court notes that though the magistrate judge indicated the dismissal of Roe

was “also likely a strike,” the magistrate judge elected to “not include [the case] in the … three strikes analysis.”

28 (Doc. 33 at 6-7, n.2.)

1 never constitute a valid basis for a bias or partiality motion,” because “they cannot possibly show

2 reliance upon an extrajudicial source”); see also Toth v. Trans World Airlines, Inc., 862 F.2d

3 1381, 1388 (9th Cir. 1988) (“conduct or rulings made during the course of the proceeding” alone

4 will not support a motion to disqualify”). Accordingly, Plaintiff’s assertions of bias are without

5 merit, and his request for reassignment is denied.

6 F. Request to set aside orders

7 Plaintiff requests to “[s]et aside all orders” by the magistrate judge in this action or, in the

8 alternative, “[s]et aside all orders made… after third complaint was filed” on April 11, 2024.

9 (Doc. 34 at 11.) A district judge will not set aside a magistrate judge’s order on a non-dispositive

10 matter unless it is clearly erroneous or contrary to law. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P.

11 72(a). Parties must file a motion for reconsideration within 14 days of the magistrate judge’s

12 ruling. Fed. R. Civ. P. 72(a); Local Rule 303(b). “A party may not assign as error a defect in the

13 order not timely objected to.” Fed. R. Civ. P. 72(a).

14 Even if the Court limited Plaintiff’s request to set aside orders issued after the filing of the

15 third amended complaint, the request envelops orders issued on August 26, 2024 (Doc. 17);

16 September 30, 2024 (Doc. 23); December 12, 2024 (Doc. 27); and December 17, 2024 (Docs. 28,

17 29). Plaintiff’s request to set aside “all orders” is clearly untimely, as his request is beyond the

18 fourteen-day deadline imposed by Rule 72 for each of the challenged orders. Therefore, the

19 request is denied as untimely. See, e.g., Thai Lao Lignite (Thail.) Co. v. Gov’t of Lao People's

20 Democratic Republic, 924 F. Supp. 2d 508, 517-18 (S.D.N.Y. 2013) (declining to consider

21 objections filed only one day after Rule 72(a)’s deadline as untimely); Lee v. Mitchell, 2015 WL

22 13918887, at *1 (C.D. Cal. Nov. 23, 2015) (finding objections made more than fourteen days

23 after the magistrate judge issued the challenged order were time-barred).

24 IV. Conclusion and Order

25 According to 28 U.S.C. § 636(b)(1), this Court performed a de novo review of this case.

26 Having carefully reviewed the matter— including Plaintiff’s objections—the Court concludes the

27 Findings and Recommendations are supported by the record and proper analysis.

28 ///

1 | Thus, the Court ORDERS:

2 1. The Findings and Recommendations dated January 28, 2025 (Doc. 33) are

3 ADOPTED in full.

4 2. Plaintiff's in forma pauperis status is REVOKED.

5 3. Plaintiff's request for case re-assignment to another magistrate judge is DENIED.

6 4. Plaintiffs request to set aside prior orders in this action is DENIED.

7 5. Plaintiff SHALL pay the filing fee in full—a total of $402.00, which was the filing

8 fee amount at the time Plaintiff filed this action—within 30 days of the date of

9 service of this order.

10 Failure to comply with this order will result in the action being dismissed without

11 prejudice.

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B IT IS SO ORDERED.

14 | Dated: _ February 21, 2025 Cerin | Tower

TED STATES DISTRICT JUDGE

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