Norvell v. Roberts
- Proceeding
- district
- Area
- civil
- Panel
- Cathy Ann Bencivengo (author)
Analysis
The court reviewed a pro se prisoner's complaint that was inadvertently filed as a new case rather than an amended complaint in a pending related action. The court ordered the complaint to be filed as the First Amended Complaint in the pending case and administratively closed the new case without counting it as a strike under 28 U.S.C. § 1915(g).
| What the court decided | The model |
|---|---|
Directing the Clerk of Court to file the Plaintiff's Complaint (ECF No. 1) as the First Amended Complaint in Case No. 3:20-cv-00512-JLS-NLS.“1) DIRECTS the Clerk of Court to file Plaintiff's Complaint (ECF No. 1) as Plaintiff's First Amended Complaint in 3:20-cv-00512-JLS-NLS;” | agree with court The court correctly identified that the plaintiff likely intended to file an amended complaint in the existing case (Norvell I) but failed to label it properly, resulting in the creation of a new case (Norvell II). By transferring the filing to the correct docket, the court respects the plaintiff's intent and avoids the prejudice of a new case number and potential statute of limitations issues, which is a standard equitable remedy for clerical or procedural errors by pro se litigants. |
Directing the Clerk of Court to file the Plaintiff's remaining submissions in Case No. 3:20-cv-00512-JLS-NLS.“2) DIRECTS the Clerk of Court to file Plaintiff’s remaining submissions in this matter in 3:20-cv-00512-JLS-NLS;” | agree with court Consistent with the transfer of the main complaint, moving the associated motions (such as the motion for appointment of counsel) to the correct case ensures they are considered in the proper procedural context. |
Directing the Clerk of Court to administratively close the current case (3:20-cv-01293-CAB-JLB).“3) DIRECTS the Clerk of Court to administratively close this matter.” | agree with court Since the substantive claims are being moved to the existing case, the new case is duplicative and should be closed to maintain docket integrity. |
Determining that the closure of this case shall not constitute a 'strike' for purposes of 28 U.S.C. § 1915(g).“This matter shall not constitute a “strike” for purposes of 28 U.S.C. Section 1915(g).” | agree with court Under 28 U.S.C. § 1915(g), a 'strike' is typically applied when a case is dismissed as frivolous, malicious, or for failure to state a claim. Here, the case is being closed administratively because the filings were transferred to another case, not because the claims were found meritless in this specific docket. Therefore, it is legally correct to exclude this administrative closure from the prisoner's strike count. |
The order itself: sound — The order is procedurally sound. The court correctly used judicial notice to identify the relationship between the new case and the existing case. The decision to transfer the filings and close the new case is a standard administrative remedy for a pro se litigant's clerical error in case numbering. The exclusion of the closure from the § 1915(g) strike count is legally accurate because the dismissal was not on the merits (frivolous/malicious/failure to state a claim) but rather due to the transfer of the action.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHANEY LEAVONE NORVELL, Case No.: 3:20-cv-01293-CAB-JLB CDCR #AA-0214, 12 ORDER: Plaintiff, 13 vs. 1) DIRECTING CLERK OF COURT 14 TO FILE COMPLAINT [ECF No. 1] 15 AS FIRST AMENDED COMPLAINT S. ROBERTS; MARCUS POLLARD; IN CASE NO. 3:20-cv-00512-JLS- 16 JUSTIN B. KING, NLS; 17 Defendants. 2) DIRECTING CLERK OF COURT 18 TO FILE PLAINTIFF’S 19 REMAINING SUBMISSIONS IN CASE NO. 3:20-cv-00512-JLS-NLS; 20 21 AND 22 3) DIRECTING CLERK OF COURT 23 TO ADMINISTRATIVELY CLOSE CASE 24 25 Anthaney Leavone Norvell (“Plaintiff”), a prisoner incarcerated at Richard J. 26 Donovan Correctional Facility (“RJD”), and proceeding pro se, filed this civil rights 27 action pursuant to 42 U.S.C. Section 1983 on July 8, 2020. (ECF No. 1.) 28 1 A court may take judicial notice of its own records, see Molus v. Swan, No. 3:05- 2 cv-00452-MMA-WMc, 2009 WL 160937, at *2 (S.D. Cal. Jan. 22, 2009) (citing United 3 States v. Author Servs., 804 F.2d 1520, 1523 (9th Cir. 1986)); Gerritsen v. Warner Bros. 4 Entm’t Inc., 112 F. Supp. 3d 1011, 1034 (C.D. Cal. 2015), and “‘may take notice of 5 proceedings in other courts, both within and without the federal judicial system, if those 6 proceedings have a direct relation to matters at issue.’” Bias v. Moynihan, 508 F.3d 1212, 7 1225 (9th Cir. 2007) (quoting Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 8 2002)); see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, 9 Inc., 971 F.2d 244, 248 (9th Cir. 1992). 10 A review of the docket in another case pending in this Court, Norvell v. Roberts, et 11 al., 20-cv-00512-JLS-NLS (S.D. Cal.) (hereinafter, Norvell I), indicates that Plaintiff may 12 not have intended his Complaint in this case to initiate a new action. The Court takes 13 judicial notice of Norvell I, in which Plaintiff asserted similar allegations against the 14 same Defendants named in this matter. (See generally id. at ECF No. 1.) In Norvell I, 15 the Court dismissed Plaintiff’s complaint for failure to state a claim on May 11, 2020, 16 and granted forty-five days leave to file an amended complaint addressing the 17 deficiencies identified by the Court. (See id. at ECF No. 7.) 18 It appears that Plaintiff likely intended the Complaint in this case, Norvell II, to be 19 his amended pleading in Norvell I. Plaintiff did not, however, label it as an amended 20 pleading or provide the Norvell I case number on the pleading. As a result, the Clerk of 21 Court opened a new case. 22 Given Plaintiff’s likely intention to submit an amended pleading in Norvell I, the 23 Court will direct the Clerk of Court to close this matter and to file Plaintiff’s Complaint 24 (ECF No. 1) as his First Amended Complaint in Norvell I as of the date it was received in 25 this case. The Court will also direct the Clerk of Court to file Plaintiff’s other 26 submissions in this case, including a motion for appointment of counsel, in Norvell I. 27 (See, e.g., ECF Nos. 2-4.) Plaintiff is cautioned that he must label all future filings in 28 Norvell I with the proper case number. 1 Conclusion and Orders 2 For the reasons explained, the Court: 3 1) DIRECTS the Clerk of Court to file Plaintiff's Complaint (ECF No. 1) as 4 || Plaintiff's First Amended Complaint in 3:20-cv-00512-JLS-NLS; 5 2) DIRECTS the Clerk of Court to file Plaintiff’s remaining submissions in 6 || this matter in 3:20-cv-00512-JLS-NLS; and 7 3) DIRECTS the Clerk of Court to administratively close this matter. This 8 matter shall not constitute a “strike” for purposes of 28 U.S.C. Section 1915(g). 9 IT IS SO ORDERED. 10 || Dated: July 21, 2020 € 11 Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28