Martinez v. United States

Decision Date30 September 2010
Docket NumberCase No. EDCV 09–0375–SVW (RC).
PartiesEwin Oscar MARTINEZ, Plaintiff, v. UNITED STATES of America, Dr. George Santini, et al., Defendants.
CourtU.S. District Court — Central District of California


Ewin Martinez, Beaver, WV, pro se.

Geoffrey Daniel Wilson, Office of U.S. Attorney, Los Angeles, CA, for Defendants.


STEPHEN V. WILSON, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the amended complaint and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as plaintiff's objections, and has made a de novo determination.


(1) The Report and Recommendation IS APPROVED AND ADOPTED;

(2) defendant George Santini's motion to dismiss IS GRANTED, and all claims against defendant Santini are dismissed;

(3) defendant United States' motion to dismiss IS GRANTED, IN PART, and all claims are dismissed against defendant United States except plaintiff's third cause of action for negligence under the Federal Tort Claims Act, and defendant United States shall file an answer to plaintiff's negligence claim within thirty (30) days of the date of this Order; and

(4) plaintiff's request for punitive damages is stricken.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order and the Magistrate Judge's Report and Recommendation by the United States mail on plaintiff.


ROSALYN M. CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Stephen V. Wilson, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05–07 of the United States District Court for the Central District of California.


On February 24, 2009, plaintiff Ewin Oscar Martinez, a federal inmate proceeding pro se and in forma pauperis, filed a complaint against defendant United States, and on June 15, 2009, plaintiff filed an amended complaint (“AC”) against defendants United States and Dr. George Santini. The amended complaint, which is brought under 42 U.S.C. § 1983 and the Federal Tort Claims Act, raises claims for: (1) intentional infliction of emotional distress in violation of California common law and 18 U.S.C. § 4042; (2) conspiracy in violation of California common law and 18 U.S.C. § 4042; (3) negligence in violation of California common law and 18 U.S.C. § 4042; 1 (4) gross negligence in violation of California common law and 18 U.S.C. § 4042; and (5) deliberate indifference to serious medical needs in violation of the Eighth and Fourteenth Amendments. AC at 3–7.

At the time of the events alleged in the amended complaint, plaintiff was confined in the United States Prison in Victorville, California (“USP Victorville”) and defendant Santini was employed by the Bureau of Prisons (“BOP”) as a physician at USP Victorville. The gravamen of plaintiff's complaint is that on or about January 21, 2007, defendant Santini prescribed the wrong medication to plaintiff, causing plaintiff to have an allergic reaction to the medication, resulting in plaintiff's eyelids, tongue, lips and testicles swelling. AC at 1–2. Plaintiff alleges defendant Santini prescribed this medication to him even though plaintiff's medical records specifically stated he is allergic to the medication. AC at 1, 3. When plaintiff confronted defendant Santini about the situation, defendant Santini told plaintiff he had not had time to review plaintiff's medical file. AC at 2, 4. The plaintiff seeks compensatory damages of $150,000 and punitive damages of $150,000. AC at 7.

On February 16, 2010, defendants filed a motion to dismiss plaintiff's amended complaint, and plaintiff filed an opposition to the motion on March 2, 2010. On March 22, 2010, defendants filed a reply.


A state or federal inmate is prohibited from “bring[ing] a civil action or appeal” in forma pauperis if the inmate:

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.

28 U.S.C. § 1915(g) (emphasis added). “This subdivision is commonly known as the ‘three strikes' provision. ‘Strikes' are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious, or failed to state a claim [.] Andrews v. King, 398 F.3d 1113, 1116 n. 1 (9th Cir.2005). However, [n]ot all unsuccessful cases qualify as a strike under § 1915(g).” Id. at 1121.

When defendants challenge a prisoner's in forma pauperis status, as defendants do here, “the initial production burden rests with the defendants.” Andrews, 398 F.3d at 1120. This means defendants must produce documentary evidence that allows the district court to conclude that the plaintiff has filed at least three prior actions that were dismissed because they were ‘frivolous, malicious or fail[ed] to state a claim.’ Id. “Once the defendants have met this initial burden, the burden then shifts to the prisoner, who must attempt to rebut the defendants' showing by explaining why a prior dismissal should not count as a strike.” Id.

Pursuant to Fed.R.Evid. 201, this Court grants defendants' request to take judicial notice of certain federal court decisions, see Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir.2007) (Court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” (citations and internal quotation marks omitted)), and the Court takes judicial notice of the decisions in the following cases: Martinez v. Minnis, United States Dist. Ct. for the N. Dist. of Ga. case no. 05–CV–2241–ODE (Martinez I); Martinez v. Minnis, United States Dist. Ct. for the N. Dist. of Ga. case no. 05–CV–2261–ODE (Martinez II); Martinez v. United States, United States Dist. Ct. for the S. Dist. of Fla. case no. 02–CV–23561–JAL (Martinez III); and Martinez v. Norwood, United States Dist. Ct. for the Cent. Dist. of Ca. case no. 08–CV–5877–SVW(RC) (Martinez IV).

Initially, in Martinez I, the district court granted summary judgment for defendants, and the Eleventh Circuit affirmed the judgment on appeal. See Martinez v. Minnis, 257 Fed.Appx. 261 (11th Cir.2007) (per curiam), cert. denied, 552 U.S. 1321, 128 S.Ct. 1894, 170 L.Ed.2d 763 (2008). Clearly, this is not a determination that Martinez I was frivolous, malicious or failed to state a claim. Barela v. Variz, 36 F.Supp.2d 1254, 1259 (S.D.Cal.1999); see also Daniels v. Woodford, 2008 WL 2079010, *6–7 (C.D.Cal.) (A case resolved by way of summary judgment does not fall within the plain language of Section 1915(g) as it is not equivalent to a dismissal on the grounds that an action is ‘frivolous, malicious, or fails to state a claim upon which relief may be granted.’). Further, Martinez II was dismissed by the district court as duplicative of Martinez I—not as frivolous, malicious or for failing to state a claim. Although a duplicative complaint may be malicious in some circumstances, see Bailey v. Johnson, 846 F.2d 1019, 1021 (5th Cir.1988) (per curiam) (“ ‘[R]epetitious litigation of virtually identical causes of action is subject to dismissal ... as malicious.’ ”), Martinez II was not dismissed as a malicious filing, presumably because Martinez II was filed within three days of Martinez I and may have been filed due to clerical error. Therefore, Martinez II also does not constitute a strike.

Finally, Martinez III was a motion to vacate sentence under 28 U.S.C. § 2255, and Martinez IV, which was brought in this district court as a habeas corpus petition under 28 U.S.C. § 2241, was construed to be a motion to vacate sentence under 28 U.S.C. § 2255 and dismissed for lack of jurisdiction. Thus, neither Martinez III nor Martinez IV constitutes a strike under Section 1915(g). See Andrews, 398 F.3d at 1122 ([D]ismissed habeas petitions do not count as strikes under § 1915(g).”); Jennings v. Natrona County Det. Ctr. Med. Facility, 175 F.3d 775, 780 (10th Cir.1999) ( “Habeas corpus and 28 U.S.C. § 2255 proceedings are not civil actions under 28 U.S.C. § 1915. Hence, the dismissal of a habeas corpus or § 2255 petition does not count as a strike for purposes of limiting in forma pauperis status under § 1915(g).”). Therefore, defendants have not met their burden of demonstrating plaintiff has “three strikes” within the meaning of Section 1915(g), and their motion to dismiss on that ground must be denied.


A motion to dismiss for failure to state a claim should be granted if the plaintiff fails to proffer “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949.

In considering whether to dismiss a complaint, the Court must accept the allegations of the complaint as true, Erickson v. Pardus, 551 U.S. 89, 93–94, 127 S.Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Albright v. Oliver, 510 U.S. 266, 267, 114 S.Ct. 807, 810, 127 L.Ed.2d 114 (1994), construe the pleading in the light most favorable to the pleading party, and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1849, 23 L.Ed.2d 404 (1969); Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir.2005...

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