-MJS (PC) Funtanilla v. Thomas, et al., No. 1:2010cv01433 - Document 8 (E.D. Cal. 2011)

Court Description: ORDER Adopting FINDINGS AND RECOMMENDATIONS; Dismissing Plaintiff's Dental Care Claim And Revoking Plaintiff's In Forma Pauperis Status (ECF Nos. 2 & 6 ), Plaintiff Shall Pay $350 Filing Fee Within Thirty Days Or Case Will Be Dismissed Without Prejudice, signed by Judge Oliver W. Wanger on 2/2/2011. (Filing Fee Deadline: 3/7/2011) (Fahrney, E)

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-MJS (PC) Funtanilla v. Thomas, et al. Doc. 8 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GREGORIO FUNTANILLA, Jr., 10 11 12 CASE NO. 1:10-cv-1433-OWW-MJS (PC) Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; DISMISSING PLAINTIFF’S DENTAL CARE CLAIM AND REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS v. CYNTHIA THOMAS, et al., 13 Defendants. (ECF Nos. 2 & 6) / 14 PLAINTIFF SHALL PAY $350 FILING FEE WITHIN THIRTY DAYS OR CASE WILL BE DISMISSED WITHOUT PREJUDICE 15 16 Plaintiff Gregorio Funtanilla, Jr., a state prisoner proceeding pro se and in forma pauperis, 17 has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to 18 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On December 7, 2010, the Magistrate Judge filed a Findings and Recommendation 20 recommending that Plaintiff’s claim relating to insufficient dental care be dismissed as duplicative, 21 that his in forma pauperis status be revoked, and that this action be dismissed without prejudice. 22 (ECF No. 6.) 23 Plaintiff filed objections to the Findings and Recommendation. In his Objections, Plaintiff 24 argues that his dental care claim should not be dismissed. However, he does not dispute that he has 25 filed the same dental care claim in more than one case. In fact, the Court has discovered that 26 Plaintiff has included the same allegations of insufficient dental care in at least four cases currently 27 pending before this Court. As noted in the Findings and Recommendation, Plaintiff’s dental care 28 1 Dockets.Justia.com 1 claim can proceed only in the action in which it was first filed. See Adams v. California Dep’t of 2 Health Servs., 487 F.3d 684, 688 (9th Cir. 2007). 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(c) and Local Rule 305, this Court 4 has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court 5 finds the Findings and Recommendations to be supported by the record and proper analysis. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The Findings and Recommendation, filed December 7, 2010, is adopted in full; 8 2. Plaintiff’s claim for dental care is DISMISSED as duplicative; 9 3. Because the Court granted Plaintiff’s in forma pauperis status based solely on his 10 allegations of imminent harm from poor dental care and that claim has been 11 dismissed, Plaintiff’s in forma pauperis status is REVOKED; 12 4. Plaintiff shall pay the full filing fee within thirty days or the case will be dismissed without prejudice. IT IS SO ORDERED. 13 14 Dated: February 2, 2011 emm0d6 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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