(PC) Stribling v. Lewis, No. 2:2018cv00951 - Document 10 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/11/2018 RECOMMENDING Plaintiff's belated 9 Objections be construed as a Motion for Reconsideration of 7 Order, and so construed, the motion be granted; 7 Order be vacated; and the matter be referred back to the magistrate judge for further litigation. Referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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(PC) Stribling v. Lewis Doc. 10 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AARON LAMONT STRIBLING, 11 Plaintiff, 12 13 No. 2:18-cv-0951-KJM-EFB P v. FINDINGS AND RECOMMENDATIONS J. LEWIS, 14 Defendant. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 17 under 42 U.S.C. § 1983. On May 3, 2018, the court issued findings and recommendations finding 18 that the dismissal of Stribling v. Defazio, No. 2:12-cv-2729-JAM-EFB (E.D. Cal.) (“Defazio”) 19 qualified as a strike for purposes of 28 U.S.C. § 1915(g) and recommending that plaintiff’s 20 application for leave to proceed in forma pauperis be denied. ECF No. 6. Plaintiff did not file 21 timely objections to that recommendation. On June 14, 2018, the district judge adopted the 22 findings and recommendations and subsequently referred the case to the undersigned for further 23 litigation. ECF Nos. 7, 8. On that same day plaintiff belatedly filed objections to the findings 24 and recommendations. ECF No. 9. The court construes his belated objections as a motion for 25 reconsideration of the June 14, 2018 order denying plaintiff’s application for leave to proceed in 26 forma pauperis, and now recommends that it be granted.1 27 28 1 “Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) Dockets.Justia.com 1 Plaintiff’s belated objections reference another case plaintiff is litigating – Stribling v. 2 Lewis, No. 2:17-cv-2009-KJM-EFB. On July 12, 2018, the court issued findings and 3 recommendations in that case, reasoning that the dismissal of Defazio, while a “close call,” does 4 not constitute a strike for purposes of 28 U.S.C. § 1915(g) because it is clear that the court did not 5 pass on the merits of plaintiff’s claims. See Stribling v. Lewis, No. 2:17-cv-2009-KJM-EFB, ECF 6 No. 23 at 3 (citing Knapp v. Hogan, 738 F.3d 1106, 1109-10 (9th Cir. 2013)). That same analysis 7 applies here and the court now finds that the dismissal of Defazio should not qualify as a strike 8 for purposes of § 1915(g). The June 14, 2018 order denying plaintiff’s application to proceed in 9 forma pauperis (ECF No. 7) should therefore be vacated. 10 Accordingly, IT IS HEREBY RECOMMENDED that: 11 1. Plaintiff’s belated objections (ECF No. 9) be construed as a motion for reconsideration 12 of the June 14, 2018 order (ECF No. 7), and that so construed, the motion be 13 GRANTED; 14 2. The June 14, 2018 order denying plaintiff’s application for leave to proceed in forma 15 pauperis (ECF No. 7) be VACATED; and 16 3. The matter be referred back to the magistrate judge for further litigation. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 ///// 23 ///// 24 ///// 25 if there is an intervening change in controlling law.” School Dist. No. 1J v. AC and S, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Further, Local Rule 230(j) requires that a motion for reconsideration state “what new or different facts or circumstances are claimed to exist which did not exist or were not shown upon such prior motion, or what other grounds exist for the motion,” and “why the facts or circumstances were not shown at the time of the prior motion.” E.D. Cal., Local Rule 230(j)(3)-(4). 2 26 27 28 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: October 11, 2018. 4 5 6 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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