-GSA (PC) Saunders v. Cate et al, No. 1:2006cv01567 - Document 39 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING Findings and Recommendations 33 ; ORDER DENYING Plaintiff's Motion to Vacate the Dismissal of This Action 30 ; ORDER DENYING All Other Pending Motions as Moot, signed by Chief Judge Anthony W. Ishii on 12/23/11. (Hellings, J)
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-GSA (PC) Saunders v. Cate et al Doc. 39 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JASON SAUNDERS, 12 Plaintiff, 13 14 vs. 1:06-cv-01567-AWI-GSA-PC ORDER ADOPTING FINDINGS AND RECOMMENDATIONS (Doc. 33.) MATTHEW CATE, et al., ORDER DENYING PLAINTIFF'S MOTION TO VACATE THE DISMISSAL OF THIS ACTION (Doc. 30.) Defendants. ORDER DENYING ALL OTHER PENDING MOTIONS AS MOOT 15 16 17 _____________________________/ 18 Jason Saunders (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant 20 to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 21 On August 24, 2011, findings and recommendations were entered, recommending that 22 Plaintiff's motion to vacate the dismissal of this action, filed on April 23, 2010, be denied. (Doc. 23 33.) On October 12, 2011, Plaintiff filed objections to the findings and recommendations. (Doc. 24 38.) 25 In accordance with the provisions of 28 U.S.C. ' 636 (b)(1)(B) and Local Rule 304, this 26 Court has conducted a de novo review of this case. Having carefully reviewed the entire file, 27 28 1 Dockets.Justia.com 1 including Plaintiff's objections, the Court finds the findings and recommendations to be supported by 2 the record and proper analysis. As explained in full detail in prior orders, 28 U.S.C. § 1915(g) 3 provides that a prisoner with three strikes cannot bring a civil action and proceed in forma pauperis 4 “unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 5 Plaintiff’s complaint was ultimately dismissed because Plaintiff was found to be three strikes and did 6 not pay the filing fee. Plaintiff complains that he should have been given the oppertunity to file an 7 Second Amended Complaint that would have alleged would have alleged facts falling within the 8 “imminent danger” exception. 9 a plausible allegation that the prisoner faced “imminent danger of serious physical injury” at the time 10 of filing. Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007); Ransom v. Johnson, 2010 WL 11 4137180, at *2 (E.D.Cal. 2010). Thus, what Plaintiff might have been able to allege if given further 12 leave to amend is not relevant to the court’s finding that Plaintiff had three strikes and his allegations 13 did not fall within the imminent danger exception. The imminent danger exception only applies if the complaint makes 14 Accordingly, THE COURT HEREBY ORDERS that: 15 1. 16 August 24, 2011, are adopted in full; 17 2. 18 Plaintiff's motion to vacate the dismissal of this action, filed on April 23, 2010, is DENIED; and 19 20 The Findings and Recommendations issued by the Magistrate Judge on 3. All other motions pending in this action are denied as moot. IT IS SO ORDERED. 21 22 Dated: 0m8i78 December 23, 2011 CHIEF UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 2