(PC) Gipbsin v. Roth ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 CLARENCE A. GIPBSIN, No. 2:18-cv-03164-CKD 11 Plaintiff, 12 v. ORDER AND 13 ROTH, et al., FINDINGS AND RECOMMENDATIONS 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this federal civil 17 rights action filed pursuant to 42 U.S.C. § 1983. Currently pending before the court is 18 defendants’ motion to revoke plaintiff’s in forma pauperis status on the grounds that the 19 dismissals of at least three prior actions filed by plaintiff qualify as “strikes” against him pursuant 20 to 28 U.S.C. § 1915(g). Plaintiff has filed a subsequent motion to proceed in forma pauperis 21 (“IFP”) which the court construes as an opposition to defendants’ motion. ECF No. 44. For the 22 reasons outlined below, the court recommends that defendants’ motion be granted and that 23 plaintiff’s IFP status be revoked. 24 I. Factual Background 25 In his complaint filed on December 7, 2018, plaintiff alleges that while confined at 26 California State Prison-Sacramento (“CSP-Sac”), he was kept handcuffed in a holding cell for a 27 period of 30 hours on February 26th and 27th, 2018 without food or water all while exposed to 28 the rain and cold. ECF No. 1 at 3. Defendants Meiers and Roth refused to remove plaintiff from 1 the holding cell. Id. Plaintiff further alleges that defendants Stigelmeyer, Sabala, Ehler, 2 Kennedy, Tran, Hord, and Spark body slammed and beat him on February 28, 2018. ECF No. 1 3 at 4. The court granted plaintiff leave to proceed in forma pauperis (“IFP”) on May 28, 2019 and 4 gave plaintiff the option of proceeding on the conditions of confinement and Eighth Amendment 5 claims against these defendants or of filing an amended complaint to fix the deficiencies with the 6 remaining defendant. ECF No. 12. Plaintiff elected to proceed with the original complaint as 7 screened and service was ordered on June 6, 2019. ECF Nos. 15, 16. 8 II. Defendants’ Motion to Revoke In Forma Pauperis 9 On September 24, 2019, defendants filed a motion for an order revoking plaintiff’s IFP 10 status based on six prior actions or appeals that defendants assert were dismissed as frivolous, 11 malicious, or failed to state a claim upon which relief could be granted. ECF No. 37. They 12 request that the court take judicial notice of the PACER documents and court records from 13 plaintiff's filings which are attached to the motion. ECF No. 37-2. Defendants further contend 14 that plaintiff was not under imminent danger of serious physical injury at the time that he filed the 15 complaint to warrant continuing plaintiff’s IFP status under 28 U.S.C. § 1915(g). ECF No. 37. 16 In his opposition, plaintiff asserts that he has not suffered three prior strikes to justify 17 revoking his IFP status because some of the prior actions involved habeas claims. ECF No. 44. 18 Plaintiff generally argues that defendants are using the motion as a tactic to delay the 19 proceedings. ECF No. 44. Plaintiff also contends that he was under imminent danger at the time 20 of filing the complaint because he was injured as a result of defendants’ conduct. Id. 21 By way of reply, defendants counter that plaintiff’s opposition does not meet his burden of 22 explaining why the six prior dismissals should not constitute strikes. ECF No. 45 at 2. 23 Defendants also counter that plaintiff was not under imminent danger of serious physical injury at 24 the time that he filed the complaint because the events at issue occurred in February 2018 and the 25 complaint was not filed until December 2018. ECF No. 45 at 3. Plaintiff does not identify any 26 ongoing threat that would constitute an imminent danger of serious physical injury more than 27 nine months after the events in dispute occurred. ECF No. 45 at 3. 28 ///// 1 III. Legal Standards 2 28 U.S.C. § 1915(g) sets forth what is known as the “three strikes” rule. Under this rule, a 3 prisoner who has previously brought three or more lawsuits in a court of the United States that 4 were dismissed on the grounds that they were “frivolous, malicious, or fail to state a claim upon 5 which relief may be granted” may not proceed in forma pauperis in the current litigation unless 6 that prisoner “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). In 7 defining “frivolous,” the Ninth Circuit Court of Appeal has concluded that a claim is frivolous 8 when it lacks any “basis in law or fact” or is “of little weight or importance.” Andrews v. King, 9 398 F.3d 1113, 1121 (9th Cir. 2005) (citations omitted). A claim is “malicious” when it is “filed 10 with the intention or desire to harm another.” Id. Failing to state a claim has been interpreted to 11 be equivalent to a dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. 12 See Moore v. Maricopa Cnty. Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011) (citations 13 omitted). 14 In moving to revoke the plaintiff's in forma pauperis status, the defendant bears the initial 15 burden of producing evidence showing that at least three of plaintiff's previous actions have been 16 dismissed by a federal court for one or more of the above reasons. Andrews v. King, 398 F.3d at 17 1121. If the defendant meets this showing, then the burden shifts to the plaintiff to prove that the 18 dismissed actions do not qualify as “strikes” within the meaning of 28 U.S.C. § 1915(g). 19 Andrews, 398 F.3d at 1121. A prisoner’s IFP status should be revoked pursuant to 28 U.S.C. 20 § 1915(g) “only when, after careful evaluation of the order dismissing [each] action, and other 21 relevant information, the district court determines that [each] action was dismissed because it was 22 frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 23 2005). 24 ///// 25 ///// 26 //// 27 ///// 28 ///// 1 IV. Analysis 2 A. District Court Actions1 3 1. Gipbsin v. Runnels, et al., Case No. 1:02-cv-6190-OWW-DLB (PC) (E.D. Cal.) 4 In this civil rights action filed on or about September 27, 2002, plaintiff alleged that 5 correctional officers at North Kern State Prison used excessive force against him on October 18, 6 1996. ECF No. 37-2 at 22 (Findings and Recommendations April 12, 2004); ECF No. 37-2 at 28- 7 29 (Order Adopting Findings and Recommendations). Plaintiff also alleged that correctional 8 officers at Corcoran State Prison used excessive force against him on January 5, 2000. Id. 9 In ruling on defendants’ motion to dismiss, the court concluded that the claim against the 10 North Kern State Prison guards was barred by the relevant statute of limitations applicable to § 11 1983 actions. ECF No. 37-2 at 23; ECF No. 37-2 at 29. The court also concluded that the claims 12 against the Corcoran State Prison guards were duplicative of the claims in Gibson v. Galaza, Case 13 No. CV F 00-5381-AWI-YNP-P.2 ECF No. 37-2 at 23-25. Plaintiff amended his complaint in 14 Gipbsin v. Runnels to include the allegations against the Corcoran State Prison guards after a 15 motion to dismiss was filed in Gibson v. Galaza. ECF No. 37-2 at 24. Based on these findings, 16 the court dismissed the entire action in Gipbsin v. Runnels with prejudice on May 25, 2004. ECF 17 No. 37-2 at 28-29. 18 In Jones v. Bock, 549 U.S. 199, 215 (2007), the Supreme Court held that if the allegations 19 are barred by the statute of limitations, the complaint is subject to dismissal for failure to state a 20 claim. Thus, the only remaining issue is whether the dismissal of the second claim in Gipbsin v. 21 Runnels was for an enumerated reason under 28 U.S.C. § 1915(g). After reviewing the record, 22 the court finds that the dismissal of the second claim as duplicative counts as a strike in light of 23 1 A court may take judicial notice of matters of public record, including publicly accessible court 24 dockets and documents available through the Public Access to Court Electronic Records (“PACER”) system. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Bennett v. 25 Medtronic, Inc., 285 F.3d 801, 803 n. 2 (9th Cir. 2002) (stating that “we may take notice of proceedings in other courts, both within and without the federal judicial system, if those 26 proceedings have a direct relation to matters at issue[.]”) (internal quotation omitted). 27 2 Although plaintiff’s last name is spelled differently, the CDCR number matches that of Clarence 28 A. Gipbsin, H-39349. 1 the fact that the allegations were added by plaintiff only after a motion to dismiss was filed in 2 Gibson v. Galaza. See, e.g., Turner v. Gibson, No. l:13–cv–1612 LJO GSA PC, 2013 WL 3 5587391, *1 (E.D. Cal. Oct.10, 2013), citing Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th 4 Cir.1995). This supports the finding that the filing of the duplicative action was frivolous and 5 was not simply done in oversight or in error. Compare Chappell v. Pliler, No. S–04–1183 LKK 6 DAD P, 2006 WL 3780914, *3 (E.D. Cal. Dec. 21, 2006) (stating that “[a] pleading filed in error 7 and dismissed as duplicative cannot be counted as a strike.”). Accordingly, the court finds that 8 the entire action in Gipbsin v. Runnels was dismissed for an enumerated reason under § 1915(g) 9 so as to count as a strike. 10 2. Gipbsin v. McCumber, et al., Case No. 2:16-cv-2053-MCE-CKD (E.D. Cal.) 11 In this case, plaintiff filed a Section 1983 action challenging the cancellation of his 12 youthful offender parole hearing scheduled for October 7, 2014 and the denial of parole on March 13 25, 2015 on due process grounds. See ECF No. 14 in Case No. 2:16-cv-2053-MCE-CKD (E.D. 14 Cal.). He requested declaratory, compensatory, and injunctive relief. Id. In Findings and 15 Recommendations issued on June 1, 2017, the court found plaintiff’s claims to be barred by Heck 16 v. Humphrey, 512 U.S. 477, 486-87 (1994), as they would lead to his entitlement to an earlier or 17 speedier release. ECF No. 37-2 at 41. The court adopted these Findings and Recommendations 18 on August 31, 2017 and dismissed plaintiff’s complaint with prejudice. ECF No. 37-2. 19 The Ninth Circuit Court of Appeal has held that “a dismissal may constitute a PLRA 20 strike for failure to state a claim when Heck’s bar to relief is obvious from the face of the 21 complaint and the entirety of the complaint is dismissed for a qualifying reason under the PLRA.” 22 Washington v. Los Angeles County Sheriff’s Dept., 833 F.3d 1048 (9th Cir. 2016). However, 23 “would-be habeas petitions” do not count as strikes. Washington, 833 F.3d at 1057; see also 24 Andrews v. King, 398 F.3d at 1122 (finding that dismissal of a habeas petition does not generally 25 count as a strike for purposes of § 1915(g)); El-Shaddai v. Zamora, 833 F.3d 1036, 1046-47 (9th 26 Cir. 2016) (concluding that an action did not constitute a strike because its claims were “in 27 essence, habeas claims.”). In reviewing the particular district court action at issue, the Ninth 28 Circuit emphasized that “[a]lthough one portion of Washington’s action might have been 1 dismissed for failure to comply with Heck, the remainder sounds only in habeas…. As a result, 2 Washington has not accrued a strike for the dismissal of his first suit… because the entire action 3 was not dismissed for one of the qualifying reasons enumerated by the [Prison Litigation Reform] 4 Act.” Washington, 833 F.3d at 1057. 5 The due process claims raised in plaintiff’s amended complaint sounded in habeas as he 6 was requesting injunctive relief in the form of a new parole hearing. See Preiser v. Rodriguez, 7 411 U.S. 475, 500 (1973) (stating that when a prisoner challenges the legality of his custody and 8 the relief he seeks would entitle him to an earlier or immediate release, his exclusive federal 9 remedy is a petition for writ of habeas corpus). Plaintiff’s Heck barred claims for monetary 10 damages were intertwined with his claims challenging the denial of parole. As a result, 11 defendants have not met their burden of demonstrating that this case is a strike. See ECF No. 37- 12 1 at 4-5 (containing no analysis concerning plaintiff’s actual claims presented in the amended 13 complaint). Accordingly, the court declines to find that this action constitutes a strike. 14 3. Gipbsin v. Campos, et al., Case No. 2:18-cv-1025-VAP-RAO (C.D. Cal.) 15 In this civil action, plaintiff raised numerous claims against police detectives, prosecuting 16 attorneys, and judges involved in his 1991 murder conviction from Los Angeles County. See 17 ECF No 37-2 at 55-78 (complaint). ECF No. 1 in Case No. 2:18-cv-1025-VAP-RAO (C.D. Cal.). 18 In his request for relief, plaintiff sought declaratory, injunctive, compensatory, and punitive 19 damages against the defendants for his wrongful incarceration. ECF No. 37-2 at 65-66. 20 In the order denying plaintiff IFP status, the district court checked the box indicating that 21 the complaint was “frivolous, malicious, or fails to state a claim upon which relief may be 22 granted” and that “leave to amend would be futile.” ECF No. 37-2 at 53. However, the district 23 court did not check the box notifying plaintiff that “[t]his denial may constitute a strike under the 24 “Three Strikes” provision governing the filing of prisoner suits” or that the complaint “[s]eeks 25 monetary relief from a defendant immune from such relief.” ECF No. 37-2 at 53 (citation 26 omitted). In its two-page order accompanying the denial of IFP form, the court explained that 27 “[p]laintiff fails to state a claim upon which relief may be granted.” ECF No. 37-2 at 54. The 28 district court further concluded that several named defendants were entitled to immunity and that 1 the claims “relating to misconduct in his criminal prosecution and sentencing are barred by Heck 2 v. Humphrey, 512 U.S. 477 (1994).” ECF No. 37-2 at 54-55. For all these reasons, the district 3 court dismissed plaintiff’s complaint without leave to amend and denied him IFP status on 4 February 14, 2018. ECF No. 37-2 at 53-55. 5 A district court’s denial of IFP status may constitute a strike when such status is denied 6 because the claims in the complaint are “’frivolous, malicious, or fails to state a claim upon which 7 relief may be granted.’” O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (quoting 28 U.S.C. 8 § 1915(g) ). In this case, as in Gipbsin v. McCumber, the court must determine whether 9 plaintiff’s civil rights claims are intertwined with any claims that sound in habeas. See 10 Washington, 833 F.3d at 1057. Plaintiff’s requests for declaratory and injunctive relief were 11 focused on invalidating his criminal conviction and sentence. ECF No. 37-2 at 65-66. In this 12 vein, the claims for damages were intertwined with relief that is only available via a habeas 13 corpus petition. See Preiser, 411 U.S. 475, 500. This finding is further supported by the Central 14 District Court’s form order in which plaintiff was not notified that the court’s denial could 15 constitute a strike. ECF No. 37-2 at 53. Since the Ninth Circuit decision in Washington preceded 16 the Central District Court’s order, this court is not persuaded that it should be counted as a strike. 17 Therefore, the court concludes that defendants have not met their burden of demonstrating that 18 this action counts as a strike under § 1915(g). 19 B. Appeals 20 1. Gipbsin v. Campos, et al., Appeal No. 18-55307 (9th Cir.) 21 Plaintiff filed a notice of appeal of the Central District Court’s decision in Gipbsin v. 22 Campos, et al., Case No. 2:18-cv-1025-VAP-RAO. See ECF No. 37-2 at 50 (district court docket 23 sheet), 88-90 (Ninth Circuit docket sheet). The Ninth Circuit Court of Appeal reviewed this 24 appeal based on a pre-filing review order that had been entered against plaintiff on June 16, 2008. 25 See ECF No. 37-2 at 104-107. The pre-filing review order remained in effect until further order 26 of the Ninth Circuit and required initial screening of any subsequent appeal filed by plaintiff 27 unless he was represented by counsel or the district court “expressly certified in its order that the 28 appeal or petition is not frivolous.” ECF No. 37-2 at 106. The Ninth Circuit dismissed plaintiff’s 1 appeal on May 21, 2018 because it was “so insubstantial as to not warrant further review.” ECF 2 No. 37-2 at 95. 3 In light of the absence of a finding by the district court that this appeal was not frivolous 4 as well as the Ninth Circuit’s conclusion that it was not substantial enough to warrant further 5 review, this court finds that it constitutes a strike under § 1915(g) as a frivolous appeal. See 6 Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005) (defining “frivolous” as “of little weight or 7 importance”). While, at first blush, this finding appears incongruent with the conclusion that the 8 underlying district court action did not constitute a strike, the appellate court never reached the 9 underlying nature of the causes of action. This appeal was dismissed based on a determination 10 that was wholly separate and apart from the types of claims presented in the § 1983 complaint. 11 Accordingly, the defendants have met their burden of demonstrating that this appeal constitutes a 12 strike within the meaning of § 1915(g). 13 2. Gibson v. Shelton, et al., Appeal No. 07-15148 (9th Cir.)3 14 In this appeal, plaintiff was ordered to pay the filing fees after the district court 15 determined that the appeal was not taken in good faith. See ECF No. 37-2 at 117 (district court 16 finding), 112 (Ninth Circuit docket sheet). Plaintiff failed to pay the filing fees and the appeal 17 was dismissed on June 26, 2007. ECF No. 37-2 at 115. 18 3. Gibson v. Terhune, et al., Appeal No. 07-15683 (9th Cir.)4 19 On July 23, 2007, the district court made a determination that this appeal was not taken in 20 good faith. ECF No. 37-2 at 129. As a result, the Ninth Circuit Court of Appeal determined that 21 3 While the Ninth Circuit Court of Appeal docket sheet identifies appellant as Clarence A. 22 Gipbsin with CDCR Number H-39349, the court orders involving this case refer to him as 23 Clarence A. Gibson. Compare ECF No. 37-2 at 109 with ECF No. 37-2 at 115-118. Based on the identifying CDCR number, the court finds that defendants have met their burden of proof in 24 demonstrating that this appeal was filed by plaintiff. 25 4 Likewise, in this appeal, the Ninth Circuit Court of Appeal docket sheet identifies appellant as Clarence A. Gipbsin with CDCR Number H-39349. ECF No. 37-2 at 120. However, the court 26 orders involving this case refer to him as Clarence A. Gibson. Compare ECF No. 37-2 at 126, 27 129. Based on the identifying CDCR number, the court finds that defendants have met their burden of proof in demonstrating that this appeal was also filed by plaintiff. 28 1 plaintiff was not permitted to proceed IFP on appeal and ordered him to pay the filing fees within 2 21 days of its order of September 14, 2007. ECF No. 37-2 at 123 (Ninth Circuit docket sheet). 3 Plaintiff failed to pay the filing fees and this appeal was dismissed on October 31, 2007 for failure 4 to prosecute. ECF No. 37-2 at 126. 5 Dismissed appeals that rely on district court findings that the appeal was not taken in good 6 faith are the equivalent of a finding of frivolity and therefore count as a strike under § 1915(g). 7 Knapp v. Hogan, 738 F.3d 1106, 1110) (9th Cir. 2013). Furthermore, an appeal may count as a 8 strike pursuant to Section 1915(g) when the appellate court denies a prisoner IFP status on appeal 9 on grounds of frivolousness “even though [the appellate court] did not dismiss the appeal until 10 later when the [appellant] did not pay the filing fee.” Richey v. Dahne, 807 F.3d 1202, 1208 (9th 11 Cir. 2015). Defendants have met their burden of establishing that Appeal Numbers 07-15148 and 12 07-15683 were dismissed based on the underlying district court determination that the appeals 13 were not taken in good faith. Therefore, pursuant to Knapp, these appeals count as strikes. See 14 Andrews I, 398 F.3d at 1120. 15 To summarize, this court has found that plaintiff filed four civil actions or appeals that 16 constitute strikes under 28 U.S.C. § 1915(g). Therefore, plaintiff’s IFP status should be revoked 17 unless he “is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 18 C. Imminent Danger of Serious Physical Injury 19 To meet this exception, plaintiff must have alleged facts that demonstrate that he was 20 “under imminent danger” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 21 1047, 1052-53 (9th Cir. 2007) (“Andrews II”). Plaintiff’s allegation of a serious physical injury 22 is based on the injuries that he received in February 2018 from defendants’ conduct. However, 23 this allegation does not focus on the relevant time period when plaintiff’s complaint was actually 24 filed, i.e., December 2018. In sum, plaintiff’s medical condition in February 2018 does not 25 provide any legal basis for this court to find that he was under imminent danger in December 26 2018. 27 In light of plaintiff’s pro se status, the court has reviewed the entire record for allegations 28 of imminent danger during the relevant time period, and finds none. While plaintiff was still 1 housed at CSP-Sac at the time that he filed the complaint, there are no allegations, either then or 2 in opposition to the present motion, that establish that plaintiff was under an ongoing threat of 3 harm that would meet the statutory exception. According to the allegations in the complaint, the 4 impetus for placing plaintiff in a holding cell on February 26, 2018 was based on plaintiff’s report 5 that his cell mate was poisoning his food. ECF No. 1 at 3, 5. Plaintiff does not allege that he was 6 continuously housed with that same cellmate while at CSP-Sac. Accordingly, there is no 7 evidence in the record that demonstrates that plaintiff meets the imminent danger exception of 28 8 U.S.C. § 1915(g) to be allowed to continue in forma pauperis. 9 V. Plaintiff’s Additional Motions 10 Plaintiff also requests that the court appoint counsel. District courts lack authority to 11 require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States 12 Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an 13 attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 14 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 15 1990). When determining whether “exceptional circumstances” exist, the court must consider 16 plaintiff’s likelihood of success on the merits as well as the ability of the plaintiff to articulate his 17 claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 18 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). 19 The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances 20 common to most prisoners, such as lack of legal education and limited law library access, do not 21 establish exceptional circumstances that warrant a request for voluntary assistance of counsel. 22 Having considered the factors under Palmer, the court finds that plaintiff has failed to 23 meet his burden of demonstrating exceptional circumstances warranting the appointment of 24 counsel at this time. The court will deny his motions for the appointment of counsel without 25 prejudice. 26 Plaintiff has also filed motions to either stay or continue his case until such time as he is 27 released from incarceration. ECF Nos. 43, 50. In support thereof, plaintiff references a 28 resentencing hearing in his state criminal case that he requested. ECF No. 50 at 8. However, 1 plaintiff does not provide any expected release date from custody other than in “the near future.” 2 ECF No. 50 at 2. An indefinite stay of these proceedings is not authorized and the court will deny 3 plaintiff’s motion. 4 Plaintiff further requests a continuance of the pending motion to revoke his IFP status 5 until discovery can be had pertaining to the allegations in the complaint. ECF No. 43. Plaintiff 6 does not demonstrate how discovery on the merits of his claims would impact the pending motion 7 pertaining to his IFP status. Plaintiff does not allege that he has been prevented from presenting 8 material or other documents that are pertinent to the pending motion. Indeed, the record 9 demonstrates that plaintiff has submitted numerous exhibits in opposition to the motion to revoke 10 his IFP status. See ECF Nos. 41, 42, 53, 54. Accordingly, the court will deny the motion for a 11 continuance. ECF Nos. 43, 50. 12 VI. Plain Language Summary for Pro Se Party 13 The following information is meant to explain this order in plain English and is not 14 intended as legal advice. 15 After reviewing all the documents submitted, the magistrate judge concluded that four of 16 your prior civil actions or appeals constitute “strikes” under 28 U.S.C. § 1915(g). The magistrate 17 judge also determined that you were not under an imminent threat of serious physical injury at the 18 time that you filed the complaint in this case. Based on these findings, the magistrate judge 19 recommends revoking your in forma pauperis status and requiring you to pay the remaining filing 20 fees to continue with this case. 21 If you disagree with this recommendation, you have twenty-one days to explain why it is 22 the wrong result. Label your explanation as “Objections to Magistrate Judge’s Findings and 23 Recommendations.” The district judge assigned to your case will review any objections filed and 24 make the final decision in your case. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. The Clerk of Court randomly assign this matter to a district court judge. 27 2. Defendants’ Request for Judicial Notice (ECF No. 37-2) is granted. 28 3. Plaintiff’s motions for the appointment of counsel (ECF Nos. 44, 50, 55, 56) are wOAOe 6. EIT PINOY INEZ MMIC I Pe Oy te VI te 1 denied without prejudice. 2 4. Plaintiffs motions to stay and/or continue this case until his release from incarceration 3 (ECF Nos. 43, 50) are denied. 4 IT IS FURTHER RECOMMENDED that: 5 1. Defendants’ Motion for an Order Revoking Plaintiff's In Forma Pauperis Status (ECF 6 No. 37) be granted. 7 2. Plaintiff's IFP status be revoked. 8 3. The order directing the CDCR to collect the filing fee in monthly installments (ECF 9 No. 13) be vacated. 10 4. Plaintiff be required to furnish the remaining balance of the statutory filing fee of $350 11 in order to proceed with this action. 12 5. Plaintiff be admonished that the failure to pay the remaining filing fee within thirty 13 days of any order adopting this recommendation will result in dismissal of this action. 14 These findings and recommendations are submitted to the United States District Judge 15 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within twenty-one days 16 | after being served with these findings and recommendations, any party may file written 17 | objections with the court and serve a copy on all parties. Such a document should be captioned 18 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 19 | objections shall be served and filed within fourteen days after service of the objections. The 20 | parties are advised that failure to file objections within the specified time may waive the right to 21 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 22 | Dated: July 29, 2020 Ci dp. f | fe 28 CAROLYN K. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 12/gipb3164.mtd.3strikes.CJRA.docx 12