(PC) Young v. Broadaus ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ZURI SANA KABISA YOUNG, No. 1:20-cv-00539-NONE-JDP (PC) 11 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING 12 v. MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PAYMENT 13 STEVEN K. BROADAUS, et al., OF FILING FEE IN FULL WITHIN TWENTY-ONE DAYS 14 Defendants. (Doc. Nos. 9, 16) 15 16 17 Plaintiff Zuri Sana Kabisa Young is a state prisoner proceeding pro se in this civil rights 18 action brought under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 20, 2020, the assigned magistrate judge entered findings and recommendations, 21 recommending that plaintiff’s application to proceed in forma pauperis (Doc. No. 9) be denied. 22 (Doc. No. 16.) Plaintiff was given an opportunity to object to the findings and recommendations 23 within fourteen days and belatedly filed objections on June 2, 2020. (Doc. No. 19.) 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 26 including plaintiff’s objections, the court finds the findings and recommendations to be supported 27 by the record and proper analysis. 28 ///// wOAOe 4. OU YOY IN IN VR MMO ot PO THe OY ov |e 1 Plaintiff objects on the grounds that “plaintiff does not have the federal strikes as alleged, 2 | pursuant to [28 U.S.C. § 1915] and that the court cannot prove that “plaintiff's previous cases 3 || were dismissed for failure to state a claim upon which relief can be granted or failure to 4 | prosecute.” (Doc. No. 19 at 1.) As an initial matter, the magistrate judge correctly found that 5 | three of plaintiff's prior cases have been dismissed for failure to state a claim upon which relief 6 | can be granted. (Doc. No. 16.) Further, in Young v. Sumpter, No. 2:05-cv-03653-CBM-E (C.D. 7 | Cal.), the district court dismissed plaintiff’s case for failure to file an amended complaint, after 8 | the court had dismissed the original complaint for failure to state a claim with leave to amend. 9 | Cd.) The Ninth Circuit has held that when a “court dismisses a complaint on the ground that it 10 | fails to state a claim, ... the court grants leave to amend, and . . . the plaintiff then fails to file an 11 | amended complaint, the dismissal counts as a strike.” Harris v. Mangum, 863 F.3d 1133, 1143 12 | (9th Cir. 2017). Thus, the dismissal in Younger v. Sumptner is appropriately counted as a strike 13 | dismissal against plaintiff for purposes of 28 U.S.C. § 1915. 14 Accordingly, IT IS ORDERED that: 15 1. The findings and recommendations issued on April 16, 2020, (Doc. No. 16), are 16 adopted in full; 17 2. Plaintiff's application to proceed in forma pauperis (Doc. No. 9) is denied; 18 3. Plaintiff must pay the $400 filing fee in full within twenty-one days of the date of this 19 Order; and 20 4. Failure to pay the filing fee will result in dismissal of this case. 21 | IT IS SOORDERED. me □ Dated: _ August 22, 2020 al, A □□□ 23 UNITED STATES DISTRICT JUDGE 24 25 26 27 28