(PC) Dearwester v. United States ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 FRANK LEE DEARWESTER, No. 2:19-cv-0124 KJM CKD P 12 Plaintiff, 13 v. ORDER AND 14 UNITED STATES OF AMERICA, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a claim for 18 injunctive relief under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. On August 26, 19 2020, the court recommended that this action be dismissed for plaintiff’s failure to file an 20 opposition to defendants’ motion to revoke plaintiff’s in forma pauperis status. On September 4, 21 2020, plaintiff filed a document the court construes as plaintiff’s opposition. Accordingly, the 22 court’s August 26, 2020 findings and recommendations will be vacated and the court will address 23 defendants’ motion. 24 Title 28 U.S.C. § 1915(g) reads as follows: 25 In no event shall a prisoner bring a civil action . . . [in forma pauperis] if the prisoner has, on 3 or more prior occasions, while incarcerated 26 or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is 27 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 28 physical injury. 1 On May 28, 2015, in Dearwester v. CDCR, 1:15-cv-0694 MJS, the court found that 2 | plaintiff has “struck out” under 28 U.S.C. § 1915(g). Judgement was final in that case well before 3 | this case was filed and plaintiff does not challenge the finding that he has “struck out.” As noted 4 | above, plaintiff brought this action seeking documents under FOIA. The claims do not concern 5 | physical injury. 6 Accordingly, IT IS HEREBY ORDERED that the court’s August 26, 2020 findings and 7 || recommendations are vacated. 8 IT IS HEREBY RECOMMENDED that: 9 1. Defendants’ motion to revoke plaintiffs in forma pauperis status (ECF No. 21) be 10 | granted; 11 2. Plaintiff's in forma pauperis status be revoked; and 12 3. Plaintiff be ordered to pay the $402 filing fee for this action. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 | objections shall be served and filed within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 21 | Dated: December 18, 2020 bh rdf /f [ { gt 2 CAROLYN K DELANEY 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 | 1 7 dear0124.3ks 28