(PC) Corral v. Unknown ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DYLAN SCOTT CORRAL, No. 2:23-cv-1058 DAD CKD P 12 Plaintiff, 13 v. ORDER AND 14 UNKNOWN, FINDINGS AND RECOMMENDATIONS 15 Defendant. 16 17 Plaintiff, a Sacramento County Jail prisoner proceeding pro se, filed this civil rights action 18 seeking relief under 42 U.S.C. § 1983. On April 23, 2024, the court recommended that this action 19 be dismissed. Plaintiff filed objections on May 20, 2024. Because the objections are well-taken, 20 the court will vacate the April 23, 2024, recommendation that this action be dismissed. 21 However, a review of court records reveals that plaintiff is barred from proceeding in 22 forma pauperis in this action. Title 28 U.S.C. § 1915(g) reads as follows: 23 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 24 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 25 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 26 physical injury. 27 Corral v. Bouldin, 2:18-cv-1629 TLN CKD P and Corral v. Sullivan, 2:18-cv-1843 KJM 28 CKD P were both dismissed for failure to state a claim. In Corral v. Martinez, 2:19-cv-0859 JAM 1 | KJNP, plaintiff's complaint was dismissed for failure to state a claim with leave to amend. ECF 2 | No.9. Plaintiff did not amend, and judgment was entered on July 27, 2020. Dismissal for failure 3 || to amend after a determination has been made that the original complaint fails to state a claim 4 | amounts to a “strike” under 28 U.S.C. § 1915(g). Harris v. Mangum, 863 F.3d 1133, 1142 (9th 5 || Cir. 2017). Plaintiff was incarcerated when he filed all three actions, was permitted to proceed in 6 || forma pauperis in all three actions, and all three actions were final well before this case was 7 || commenced. There is no allegation by plaintiff in the operative amended complaint that he is 8 | under imminent danger of serious physical injury. 9 In light of the foregoing, the court will recommend that plaintiffs in forma pauperis status 10 || be revoked and that plaintiff be given 14 days within which to pay the $405 filing fee for this 11 | action. 12 Accordingly, IT IS HEREBY ORDERED that the court’s April 23, 2024, findings and 13 || recommendations are vacated. 14 IT IS HEREBY RECOMMENDED that: 15 1. Plaintiffs in forma pauperis status be revoked. 16 2. Plaintiff be granted fourteen days within which to pay the $405 filing fee for this 17 || action. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 | after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. The document should be captioned “Objections to Magistrate Judge’s Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th 24 | Cir. 1991). 25 | Dated: May 23, 2024 □□ / dp ai 26 CAROLYNK. DELANEY 27 UNITED STATES MAGISTRATE JUDGE 28 |] i/comi058.804