(PC) Lipsey v. De La Rosa ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTOPHER LIPSEY, JR., No. 2:19-cv-0589 KJM KJN P 12 Plaintiff, 13 v. ORDER 14 DE LA ROSA, et al., 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 12, 2019, the magistrate judge filed findings and recommendations, which were 21 served on plaintiff and which contained notice to plaintiff that any objections to the findings and 22 recommendations were to be filed within fourteen days. On July 15, 2019, plaintiff filed 23 objections to the findings and recommendations.1 24 Additionally, on June 4, 2019, plaintiff signed a document styled, “Motion Requesting 25 Permission to Proceed In Forma Pauperis,” filed June 14, 2019. ECF No. 10. Plaintiff concedes 26 that the dismissal of Case No. 2:17-cv-08985-AG-JC (C.D. Cal.) and Case No. 1:17-cv-00896- 27 1 Plaintiff also filed further unauthorized objections on December 16, 2019, which the court 28 disregards. 1 AWI-EPG-PC (E.D. Cal.) count as strikes under 28 § 1915(g). But plaintiff argues that Case 2 Nos. 1:15-cv-00691-LJO-SKO-PC (E.D. Cal.) and 2:17-cv-05094 AG(JC) (C.D. Cal.) cannot be 3 counted as strikes because he appealed the dismissals and those appeals are pending, citing 4 Richey v. Dahne, 807 F.3d 1202, 1209 (9th Cir. 2015). ECF Nos. 10 at 1-2 & 11 at 2. The 5 undersigned considers plaintiff’s June 4, 2019 filing as well as his objections to the findings and 6 recommendations. 7 In addition to finding that plaintiff failed to allege any facts suggesting he faced imminent 8 danger of serious physical injury at the time he filed the instant action, the magistrate judge found 9 that plaintiff sustained at least three strikes under 28 U.S.C. § 1915(g) based on the following 10 cases: 11 1. Lipsey v. SATF Prisons Ad Seg Property Officers, et al., Civil Case No. 1:15-cv- 12 00691-LJO-SKO-PC (E.D. Cal. June 6, 2018 Order dismissing action for failure to state a claim); 13 2. Lipsey v. Court of Appeal, et al., Civil Case No. 2:17-cv-08985-AG-JC (C.D. Cal. Dec. 14 27, 2017 Order of dismissal as frivolous, malicious, or for failure to state a claim); 15 3. Lipsey v. Secretary of CDCR, et al., Civil Case No. 2:17-cv-05094 AG(JC) (C.D. Cal. 16 May 16, 2018 Order of dismissal for failure to state a claim, failure to comply with court order, 17 and failure to prosecute); and 18 4. Lipsey v. M. Guzman, et al., Civil Case No. 1:17-cv-00896-AWI-EPG-PC (E.D. Cal. 19 July 3, 2018 Order of dismissal for failure to state a claim). 20 ECF No. 9 at 1-2. 21 Court records confirm that in Case No. 1:15-cv-0691 LJO SKO, the Ninth Circuit 22 remanded the case to the district court on April 16, 2018.2 However, the magistrate judge issued 23 findings and recommendations on April 19, 2018, and on June 6, 2018, the district judge adopted 24 ///// 25 ///// 26 2 A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 27 F.3d 801, 803 n.2 (9th Cir. 2002) (“[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to 28 matters at issue”) (internal quotation omitted). 1 the findings and recommendations over plaintiff’s May 15, 2018 objections. Case No. 1:15-cv- 2 0691, ECF No. 56. Plaintiff did not file an appeal. Id. No appeal was pending at the time 3 plaintiff filed the instant action, and no appeal is pending at this time. 4 Similarly, in Case No. 2:17-cv-5094 AG (JC), plaintiff did not file an appeal, and no 5 appeal was pending when plaintiff filed this action and no appeal is pending now. Id. Rather, on 6 June 29, 2018, plaintiff filed a motion for reconsideration of the May 16, 2018 dismissal, which 7 the Central District of California court denied on October 31, 2018. Case No. 2:17-cv-5094, ECF 8 Nos. 17, 19. Plaintiff did not appeal either the judgment or the October 31, 2018 order in that 9 case. 10 Because no appeals were filed or pending in either case relied upon by plaintiff in his 11 objections, the dismissals of these district court cases are appropriately counted as strikes under 12 § 1915(g). 13 In addition, plaintiff stated he is also appealing the dismissal of Lipsey v. Samaniego, Civil 14 Case No. 1:17-cv-1703 LJO JDP (E.D. Cal.) (April 17, 2019 dismissal for failure to state a 15 claim). This court does not rely on this case because the dismissal occurred after plaintiff filed 16 the instant action. Nevertheless, on May 13, 2019, the Ninth Circuit ordered plaintiff to show 17 why his in forma pauperis status should not be revoked on the basis of the same 1915(g) strikes 18 the magistrate judge identified here, namely: 2:17-cv-8985 AG JC (C.D. Cal.); 2:17-cv-5094 AG 19 JC (C.D. Cal.); 1:15-0691 LJO SKO (E.D. Cal.); and 1:17-cv-0896 AWI EPG (E.D. Cal.). See 20 Order, Case No. 19-15980 (9th Cir. May 13, 2019). 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 22 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 23 findings and recommendations to be supported by the record and by proper analysis. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed June 12, 2019, are adopted in full; 3 2. Plaintiff’s motion to proceed in forma pauperis (ECF No. 5, 10) is denied; 4 3. This action is dismissed without prejudice; and 5 4. This clerk of court close this case. 6 DATED: October 2, 2020. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28