(PC)Washington v. California Department of Corrections and Rehabilitation ( 2020 )

1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 WILLIAM NATHANIEL Case No. 1:19-cv-01556-AWI-JLT (PC) WASHINGTON, 6 ORDER ADOPTING FINDINGS AND Plaintiff, RECOMMENDATIONS, DENYING 7 PLAINTIFF’S MOTIONS TO PROCEED v. IN FORMA PAUPERIS, AND DISMISSING ACTION WITHOUT PREJUDICE 8 CALIFORNIA DEPARTMENT OF 9 CORRECTIONS AND (Docs. 2, 6, 7) REHABILITATION, et al., 10 Defendants. 11 12 13 Plaintiff William Nathaniel Washington is a state prisoner proceeding pro se in this civil 14 rights action under 42 U.S.C. section 1983. This matter was referred to a United States magistrate 15 judge pursuant to 28 U.S.C. section 636(b)(1)(B) and Local Rule 302. 16 On November 7, 2019, the assigned magistrate judge issued findings and 17 recommendations to deny Plaintiff’s motion to proceed in forma pauperis, (Doc. 2), because 18 Plaintiff has three “strikes” under 28 U.S.C. section 1915(g) and fails to show that he is in 19 imminent danger of serious physical injury.1 (Doc. 6.) In finding that Plaintiff has three strikes, 20 the magistrate judge took judicial notice of three of Plaintiff’s prior cases that were dismissed on 21 the grounds that they were frivolous, malicious, and/or failed to state a claim: (1) Washington v. 22 City of Los Angeles, et al., No. 2:14-cv-09375-VAP-PJW (C.D. Cal.) (dismissed on August 6, 23 2015, as frivolous, malicious, or for failure to state a claim); (2) Washington v. Diamond, No. 24 2:18-cv-05883-VAP-PJW (C.D. Cal.) (dismissed on July 18, 2018, for failure to state a claim); 25 and (3) Washington v. Lewis, No. 2:16-cv-03041-JAM-EFB (E.D. Cal.) (dismissed on October 26 24, 2018, for failure to state a claim). (Doc. 6 at 2.) 27 1 1 Plaintiff filed objections on December 11, 2019. (Doc. 10.) In his objections, Plaintiff 2 || states that the Ninth Circuit held in Washington v. Los Angeles Cty. Sheriff's Dep’t, No. 13- 3 | 56647, that Washington v. City of Los Angeles, et al., supra, does not count as strike under 4 | section 1915(g), and thus the magistrate judge erred in counting it as a strike. (Doc. 10 at 2-3.) 5 | However, Plaintiff confuses Washington v. City of Los Angeles, et al., No. 2:12-cv-07429-UA- 6 | PIW (“Washington I’), with Washington v. City of Los Angeles, et al., No. 2:14-cv-09375-VAP- 7 | PJIW (Washington IT’). The Ninth Circuit held that, because the district court dismissed 8 | Washington I under Younger v. Harris, 401 U.S. 37 (1971), the dismissal did not trigger a strike. 9 | Washington v. Los Angeles Cty. Sheriff's Dep't, 833 F.3d 1048, 1057-58 (9th Cir. 2016). 10 | However, the district court did not dismiss Washington IT pursuant to Younger. (Compare 11 | Washington H, Doc. 11, with Washington I, Doc. 2.) Because the court dismissed Washington IT 12 | onthe grounds that it was “[f]rivolous, malicious, or fail[ed] to state a claim,” (see Washington IT, 13 | Doc. 11), the dismissal counts as a strike. 14 In accordance with the provisions of 28 U.S.C. section 636(b)(1)(C), this Court has 15 | conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds 16 | the findings and recommendations to be supported by the record and proper analysis. 17 Accordingly, the Court ORDERS: 18 1. The findings and recommendations issued on November 7, 2019, (Doc. 6) are 19 ADOPTED in full; 20 2. Plaintiff's motions to proceed in forma pauperis, (Docs. 2, 7), are DENIED; and, 21 3. This action is DISMISSED without prejudice to refiling upon prepayment of the 22 filing fee. 23 IT IS SO ORDERED. 95 | Dated: _ January 17, 2020 : : SENIOR DISTRICT JUDGE 26 27 28