(PC) K'napp v. Beard et al, No. 1:2013cv01044 - Document 9 (E.D. Cal. 2014)
Court Description: ORDER ADOPTING 7 FINDINGS AND RECOMMENDATIONS IN FULL; ORDER REVOKING Plaintiff's In Forma Pauperis Status and Requiring Payment of Filing Fee in Full Within Twenty-One (21) Days, signed by District Judge Anthony W. Ishii on 3/17/2014. (Jessen, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ERIC C.R. K’NAPP, Case No. 1:13-cv-01044-AWI-MJS (PC) 12 Plaintiff, 13 v. 14 JEFFREY BEARD, et al., 15 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTYONE DAYS Defendants. 16 (ECF No. 7) 17 TWENTY-ONE DAY DEADLINE 18 19 Plaintiff is a state prisoner proceeding pro se and in forma pauperis (“IFP”) in this 20 civil rights action filed pursuant to 42 U.S.C. § 1983. The matter was referred to a United 21 States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 of the 22 United States District Court for the Eastern District of California. 23 On February 12, 2014, the Magistrate Judge issued Findings and Recommendations 24 that Plaintiff’s IFP status should be revoked because he accrued three or more strikes and 25 was not under imminent danger of serious physical harm at the time this action was 26 initiated, 28 U.S.C. § 1915(g), and that he be required to pay the $400 filing fee in full within 27 twenty-one days of adoption of the Findings and Recommendations. 28 1 1 2 On March 3, 2014, Plaintiff filed Objections to the Findings and Recommendations. 3 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has 4 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 by proper 6 analysis. The Objections do not raise an issue of law or fact under the Findings and 7 Recommendations and there is no need to modify the Findings and Recommendations 8 based on the Objections. Plaintiff’s objection that the actions and appeals cited in the Findings and 9 10 Recommendations are not strikes fails for the reasons stated by the Magistrate Judge. The 11 Ninth Circuit has confirmed these strikes. See Knapp v. Hogan, 738 F.3d 1106, 1111 (9th 12 Cir. 2013), citing 28 U.S.C. § 1915(g). The dismissals underlying these strikes were final 13 before this action was filed. His disagreement with Hogan is not a basis for objection.1 Such argument, reflecting 14 15 both documents included with his Objections of which he seeks judicial notice,2 and 16 claimed entitlement to equitable relief, is unavailing. The cases he cites in his Objections do 17 not suggest otherwise. 18 His objection that he was in imminent danger of serious physical injury at the time 19 the pleading was filed fails for the reasons stated in the Findings and Recommendations. 20 The Objections lack merit. 21 Accordingly, it is HEREBY ORDERED that: 22 1. The Court adopts the Findings and Recommendations filed on February 12, 2014 (ECF No. 7) in full, 23 24 2. Plaintiff’s in forma pauperis status (ECF No. 3) is REVOKED, 25 3. Plaintiff shall PAY THE $400 FILING FEE in full within twenty-one days of service of this Order, and 26 27 28 1 The Court takes judicial notice of documents filed with the district court and included with the Objections. See Fed. R. Evid. 201(b), which provides that: “A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” 2 See n.1. 2 1 4. If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of 2 service of this Order, all pending motions shall be terminated and this action 3 dismissed without prejudice. 4 5 6 IT IS SO ORDERED. Dated: March 17, 2014 SENIOR DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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