(PC) Peralta v. Swetalla ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CION PERALTA, Case No. 1:18-cv-01023-DAD-EPG 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT DEFENDANT’S 13 v. MOTION FOR AN ORDER REVOKING PLAINTIFF’S IN FORMA PAUPERIS STATUS 14 J. SWETALLA, et al., BE DENIED 15 Defendants. (ECF NO. 15) 16 17 18 19 On July 30, 2018, Plaintiff commenced this action by filing a Complaint against J. 20 Swetalla, L. Machado, V. Powers, J. Sebok, and Xavier Cano (collectively, “Defendants”). (ECF 21 No. 1.) Plaintiff brings claims under the First, Eighth, and Fourteenth Amendments of the U.S. 22 Constitution, as well as the Prison Rape Elimination Act and various portions of state law. 23 Plaintiff paid the filing fee at the time he filed suit. 24 The Court screened the Complaint and ultimately recommended that this action proceed 25 on Plaintiff’s claims against Defendant Swetalla for sexual assault and excessive force in 26 violation of the Eighth Amendment, retaliation in violation of the First Amendment, and 27 negligence; and against Defendants Powers and Cano for denial of due process in violation of the 28 1 | Fourteenth Amendment. The Court further recommended dismissal of all other claims and 2 | defendants, including Defendant Sobak. The district judge adopted the findings and 3 || recommendations on April 8, 2019. (ECF No. 10.) 4 On June 21, 2019, Defendants filed a “Motion to Revoke Plaintiffs in Forma Pauperis 5 | Status and Require the Prepayment of Filing Fees.” (ECF No. 15.) Defendants contend that 6 | “Plaintiffis a ‘three-striker’ under 28 U.S.C. § 1915(g).” Ud.) 7 But, as even a cursory glance at the docket sheet reveals, Plaintiff is not proceeding in g | forma pauperis in this matter. Whether he has “three strikes” under 28 U.S.C. § 1915(g) is g | irrelevant because Plaintiff paid the filing fee. 10 Accordingly, for the reasons set forth herein, IT IS HEREBY RECOMMENDED, that 11 | Defendants’ “Motion to Revoke Plaintiff's in Forma Pauperis Status and Require the Prepayment 12 | of Filing Fees” be denied. 13 These findings and recommendations are submitted to the district judge assigned to the 14 || case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within twenty-one (21) days after 15 | being served with these findings and recommendations, Defendant may file written objections 16 | with the Court. Defendants are advised that failure to file objections within the specified time 17 | may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 18 | 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 | ITIS SO ORDERED. 20 . Dated: _ August 23, 2019 [spe heey — 21 UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28