-SMS (PC) Price v. Cunningham et al, No. 1:2008cv00425 - Document 35 (E.D. Cal. 2011)

Court Description: ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and REVOKING Plaintiff's In Forma Pauperis Status 27 , 33 ; ORDER GRANTING Plaintiff's Motion for Judicial Notice 34 , FORTY-FIVE DAY DEADLINE, signed by Chief Judge Anthony W. Ishii on 5/24/11: Submission of the entire $350.00 civil filing fee due within forty-five (45) days from the date this order is filed. (Hellings, J)
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-SMS (PC) Price v. Cunningham et al Doc. 35 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 FRED PRICE, 10 11 12 13 CASE NO. 1:08-cv-00425-AWI-SMS PC Plaintiff, v. S. R. CUNNINGHAM, et al., Defendants. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS (ECF Nos. 27, 33) ORDER GRANTING PLAINTIFF’S MOTION FOR JUDICIAL NOTICE 14 (ECF No. 34) 15 / FORTY-FIVE DAY DEADLINE 16 17 Plaintiff Fred Price (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 18 in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint 19 filed March 24, 2008, against Defendants Cunningham and Mullins for deliberate indifference to a 20 serious risk to Plaintiff’s safety and use of excessive force in violation of the Eighth Amendment and 21 Defendant Cunningham for retaliation. (ECF No. 1.) The matter was referred to a United States 22 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 23 Defendants filed a motion to revoke Plaintiff’s in forma pauperis status on June 15, 2010, 24 and Plaintiff filed an opposition on July 1, 2010. (ECF Nos. 19, 25.) Defendants filed a reply on 25 July 6, 2010, and Plaintiff filed a response on July 16, 2010. (ECF Nos. 24, 26.) On March 10, 26 2011, the Magistrate Judge issued findings and recommendations recommending that Plaintiff’s in 27 forma pauperis status be revoked. (ECF No. 27.) Plaintiff filed objections on April 21, 2011. (ECF 28 No. 33.) On May 3, 2011, Plaintiff filed a motion for the Court to take judicial notice of the order 1 Dockets.Justia.com 1 transferring the action. (ECF No. 34.) 2 Plaintiff argues that Price v. Parks, 2:02-cv-07724-UA-SH, should not count as a strike 3 because it was dismissed for lack of jurisdiction and failure to state a claim. While actions that are 4 dismissed for lack of jurisdiction are not strikes, they can count as strikes in some circumstances. 5 O’Neal v. Price, 531 F.3d 1146, 1155 n9 (9th Cir. 2008). Here the action was dismissed for failure 6 to state a claim, as well as lack of jurisdiction and it does constitute a strike under 28 U.S.C. 1915(g). 7 Additionally, Plaintiff argues that the Magistrate Judge should have undertaken a de novo review 8 of Price v. Rianda, 2:02-cv-07526-UA-SH, because he alleges that it was erroneously dismissed for 9 failure to state a claim. The order dismissing this action clearly states that Plaintiff set forth three 10 claims, none of which were cognizable under section 1983. If Plaintiff disagreed with the dismissal 11 of this action his recourse was to file an appeal. This action also constitutes a strike under 28 U.S.C. 12 1915(g). 13 Finally, Plaintiff argues that the Magistrate was incorrect in determining that he was not in 14 imminent danger at the time that he filed his complaint. Plaintiff invokes the mailbox rule. Since 15 Plaintiff placed the complaint in the mail and was not transferred until a later date, he argues that he 16 was in imminent danger when the complaint was filed. Plaintiff is correct that it is the circumstances 17 that the inmate faces at the time the complaint is filed that are considered for the purposes of 18 determining imminent danger. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007.) 19 Generally in a civil action the filing of the complaint is simultaneous with submission of the 20 complaint. O’Neal, 531 F.3d at 1151. However, where the plaintiff is proceeding in forma pauperis 21 the process is different. The suit is filed when the court authorizes the commencement of the suit 22 without prepayment of fees. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Where an 23 inmate submits a complaint and will be proceeding in forma pauperis the complaint would not be 24 considered filed at the time it was placed in the prison mail. O’Neal, 531 F.3d at 1151. Plaintiff was 25 transferred on February 4, 2008. Plaintiff’s Response 1, ECF No. 26. The Court will grant 26 Plaintiff’s motions and takes judicial notice that this action was transferred to the Eastern District 27 on March 24, 2008. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978), aff'd, 28 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). The complaint was lodged on February 2 1 12, 2008, by the Northern District and in forma pauperis status was granted on March 11, 2008. 2 Plaintiff was not in imminent danger at the time the complaint was filed as he had already been 3 transferred from the institution. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings 6 and recommendations to be supported by the record and by proper analysis. 7 Accordingly, IT IS HEREBY ORDERED that: 8 1. The findings and recommendations, filed March 10, 2010, is adopted in full; 9 2. Plaintiff’s motion for judicial notice is GRANTED; 10 3. Defendants’ motion to revoke Plaintiff’s in forma pauperis status, filed June 15, 11 12 2010, is GRANTED; 4. Plaintiff’s in forma pauperis status is REVOKED and the order granting Plaintiff’s 13 application to proceed in forma pauper on March 11, 2008, is VACATED to the 14 extent it permitted Plaintiff permission to pay the civil filing fee pursuant to the 15 installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) and (2); 16 5. 17 18 Plaintiff must, within forty five (45) days from the date this order is filed, submit the entire $350 civil filing fee the Clerk of Court as required by 28 U.S.C. § 1914(a); and 6. If Plaintiff fails to do so, the Court will enter an Order dismissing this action. 19 20 IT IS SO ORDERED. 21 22 Dated: 0m8i78 May 24, 2011 CHIEF UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 3