K'napp v. Beard et al

Filing 13

FINDINGS and RECOMMENDATIONS to Revoke Plaintiff's In Forma Pauperis Status and Requiring Payment of Filing Fee in Full; Response Due within Fourteen Days signed by Magistrate Judge Dennis L. Beck on 5/28/2015. Referred to Judge Anthony W. Ishii. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC C.R. K’NAPP,

Case No. 1:13-cv-00996-AWI-DLB PC

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Plaintiff,
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v.
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FINDINGS AND RECOMMENDATION
REVOKING PLAINTIFF’S IN FORMA
PAUPERIS STATUS AND REQUIRING
PAYMENT OF FILING FEE IN FULL

JEFFERY BEARD, et al.,
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Defendants.
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RESPONSE DUE WITHIN FOURTEEN
DAYS

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Plaintiff Eric C.R. K’napp (“Plaintiff”) is a prisoner in the custody of the California

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Department of Corrections and Rehabilitation (“CDCR”). Plaintiff is proceeding pro se in this civil

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action pursuant to 42 U.S.C. § 1983. Plaintiff filed his original complaint on June 28, 2013. (ECF

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No. 1.)

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On August 2, 2013, the Court denied Plaintiff’s applications to proceed in forma pauperis

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after determining Plaintiff was subject to 28 U.S.C. § 1915(g) and was precluded from proceeding in

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forma pauperis. The Court had taken judicial notice of the following cases as strikes: 2:03-cv-

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00394-DFL-PAN (E.D. Cal. 2004), Knapp v. Knowles, et al. (dismissed on August 13, 2004, for

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failure to state a claim); 2:06-cv-00453-GEB-GGH (E.D. Cal. 2007), Knapp v. Knowles, et al.,

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(dismissed on June 13, 2007, for frivolity and failure to state a claim); and No. 04-16701 (9th Cir.

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2005), Knapp v. Knowles, et al., (dismissed on March 7, 2005, as frivolous).

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On August 15, 2013, Plaintiff filed a motion for relief from order of dismissal and final

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judgment. Plaintiff argued that the Court, in 1:08-cv-01779 AWI BAM, Knapp v. Cate, held that
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two of the three cases which the Court cited in the August 2, 2013, order were not strikes under §

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1915(g). In Knapp v. Cate, the Court found that the cases of Knapp v. Knowles, et al., No. 2:03-cv-

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00394-DFL-PAN (E.D.Cal. 2004), Knapp v. Knowles, et al. No. 2:06-cv-00453-GEB-GGH

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(E.D.Cal. 2007), and Knapp v. Harrison, No. 2:06-cv-07702-JVS-RC (C.D.Cal. 2008), were

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dismissed as sanctions for failure to comply with the Federal Rules of Civil Procedure. The Court

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stated that none of these cases stated that they were dismissed as frivolous, malicious or for failure to

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state a claim, and therefore, they could not be considered strikes under § 1915(g). On September 3,

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2013, the Court agreed with Plaintiff and granted his motion for reconsideration in this case.

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Thereafter, in Knapp v. Hogan, 738 F.3d 1106 (9th Cir. 2013), cert. denied, 135 S. Ct. 57,

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190 L. Ed. 2d 32 (2014), the Ninth Circuit addressed this very issue. The Ninth Circuit determined

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that the cases cited above which the Court initially cited as strikes were indeed strikes under §

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1915(g). Id. at 1110. In addition, the Ninth Circuit concluded that Plaintiff had accrued the

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following five strikes and was therefore subject to § 1915(g): Knapp v. Knowles, No. 04–16701 (9th

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Cir. 2005); Knapp v. Harrison, No. 08–56629 (9th Cir. 2009); Knapp v. Knowles, No. 2:03–cv–

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00394 (E.D.Cal. 2004); Knapp v. Knowles, No. 2:06–cv–00453 (E.D.Cal. 2007); Knapp v. Harrison,

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No. 06–cv–07702, 2008 WL 4334683 (C.D.Cal. 2008). Knapp v. Hogan, 738 F.3d at 1108, 1110.

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In light of the fact that the Ninth Circuit has determined that Plaintiff is subject to § 1915(g) after

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having accrued the above five strikes, the Court finds that Plaintiff’s in forma pauperis status should

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be REVOKED and Plaintiff should be REQUIRED to pay the full filing fee for this action.

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that Plaintiff’s in forma pauperis status

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be REVOKED and Plaintiff be REQUIRED to pay the full filing fee for this action, or suffer

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dismissal.

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These Findings and Recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14)

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days after date of service of these Findings and Recommendations, Plaintiff may file written

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objections with the Court. Such a document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

/s/ Dennis

May 28, 2015

L. Beck

UNITED STATES MAGISTRATE JUDGE

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