(PC) Candler v. Gonzales ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 KEITH CANDLER, No. 2:22-cv-1049 KJM CKD P 11 Plaintiff, 12 v. ORDER 13 D. GONZALES, et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 17 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 18 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 19 On August 26, 2022, the magistrate judge filed findings and recommendations, which 20 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 21 and recommendations were to be filed within fourteen days. ECF No. 8. Plaintiff has filed 22 objections to the findings and recommendations. ECF No. 11. 23 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 24 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 25 findings and recommendations to be supported by the record and by the proper analysis. 26 The magistrate judge recommends denying plaintiff’s request to proceed in forma 27 pauperis because plaintiff’s prior actions have been dismissed for failure to state a claim on at 28 least three prior occasions. See generally ECF No. 8. Under 28 U.S.C. § 1915(g), “unless the 1 | prisoner is under imminent danger of serious physical injury,” a prisoner may not proceed in 2 || forma pauperis if three or more of the prisoner’s prior actions have been “dismissed on the 3 || grounds that [they are] frivolous, malicious, or fails to state a claim upon which relief may be 4 | granted.” Plaintiff objects by declaring only that none of the three prior actions was dismissed on 5 || the grounds of being frivolous. ECF No. 11 at 2. Plaintiff does not assert there is an imminent 6 || danger of serious physical injury. See 28 U.S.C. § 1915(g). 7 Neither the magistrate judge nor this court has concluded plaintiff's prior actions were 8 | frivolous. Rather, the court finds three of plaintiff's prior actions were dismissed for failure to 9 || state a claim, barring the court from granting plaintiffs request to proceed in forma pauperis. See 10 | £l-Shaddai v. Zamora, 833 F.3d 1036, 1043 (9th Cir. 2016) (finding a claim dismissed under 11 || Federal Rule 12(b)(6) counts as a strike under 28 U.S.C. § 1915(g)). 12 Accordingly, IT IS HEREBY ORDERED: 13 1. The findings and recommendations filed August 26, 2022, are adopted in full; 14 2. Plaintiff's motion to proceed in forma pauperis (ECF No. 2) is denied; and 15 3. Plaintiff must pay the $402 filing fee for this action within 14 days. Failure to pay the 16 | filing fee will result in dismissal. 17 | DATED: January 24, 2023. 18 19 l ti / ¢ q_/ 50 CHIEF NT] ED STATES DISTRICT JUDGE 21 22 23 24 25 26 27 28