(PC) Bealer v. Kern Valley State Prison
Filing
18
ORDER Vacating 12 Findings and Recommendations Issued on December 12, 2018, and Granting Plaintiff's Application to Proceed In Forma Pauperis 11 , signed by Magistrate Judge Stanley A. Boone on 2/19/19. (Gonzalez, R)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
EASTERN DISTRICT OF CALIFORNIA
10
11
ANTWOINE BEALER,
12
Plaintiff,
13
14
15
v.
KERN VALLEY STATE PRISON,
Defendant.
16
17
18
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:18-cv-01170-DAD-SAB (PC)
ORDER VACATING FINDINGS AND
RECOMMENDATIONS ISSUED ON
DECEMBER 12, 2018, AND GRANTING
PLAINTIFF’S APPLICATION TO PROCEED IN
FORMA PAUPERIS
[ECF Nos. 11, 12]
Plaintiff Antwoine Bealer is proceeding pro se in this civil rights action pursuant to 42 U.S.C.
19
§ 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
20
636(b)(1)(B) and Local Rule 302.
21
On December 12, 2018, the undersigned issued Findings and Recommendations
22
recommending that Plaintiff’s application to proceed in forma pauperis be denied because Plaintiff had
23
incurred three strikes under 28 U.S.C. § 1915(g) and failed to allege that he was in imminent danger of
24
physical harm. (ECF No. 12.) In the Findings and Recommendations, the Court took judicial notice
25
of the following cases: (1) Antwoine Bealer v. Wilson., No. 1:16-cv-00672-DAD-SAB (E.D. Cal.
26
May 12, 2016) (dismissed for failure to state a claim); (2) Antwoine Bealer v. Kern Valley State
27
Prison., No. 1:16-cv-00367-LJO-SKO (E.D. Cal. March 17, 2016) (dismissed for failure to state a
28
claim); (3) Antwoine Bealer v. Kern Valley State Prison, No. 1:17-cv-01277-LJO-SAB (E.D. Cal.
1
1
March 7, 2017) (dismissed for failure to state a claim). The Findings and Recommendations were
2
served on Plaintiff and contained notice that objections were to be filed within thirty days. (Id.)
Section 1915(g) provides that a prisoner cannot “bring” new action in forma pauperis if he
3
4
“has, on 3 or more prior occasions … brought an action … that was dismissed on the ground that it is
5
frivolous, malicious, or fails to state a claim….” 28 U.S.C. § 1915(g) (emphasis added). The Ninth
6
Circuit has noted that “‘[strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner,
7
which were dismissed ‘on the ground that [they were] frivolous, malicious or fail [] to state a
8
claim[.]’” Andrew v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).
Plaintiff filed objections on January 31, 2019. In his objections, Plaintiff correctly submits that
9
10
cases Antwoine Bealer v. Kern Valley State Prison., No. 1:16-cv-00367-LJO-SKO (E.D. Cal. March
11
17, 2016) (dismissed for failure to state a claim on June 12, 2018) and Antwoine Bealer v. Kern
12
Valley State Prison, No. 1:17-cv-01277-LJO-SAB (E.D. Cal. March 7, 2017) (dismissed for failure to
13
state a claim on October 25, 2018), were not dismissed until after he filed the instant action on May
14
14, 2018. The Court will vacate the December 12, 2018, Findings and Recommendations, and based
15
on a showing required by section 1915(a)(1), Plaintiff’s motion to proceed in forma pauperis will be
16
granted.
17
Based on the foregoing, it is HEREBY ORDERED that:
18
1.
19
2.
The Findings and Recommendations issued December 11, 2018, are VACATED; and
Plaintiff’s motion to proceed in forma pauperis is GRANTED, and the Clerk of Court
20
shall issue the order directing payment of the filing fee by the California Department
21
of Corrections and Rehabilitation.
22
23
IT IS SO ORDERED.
24
Dated:
25
February 19, 2019
UNITED STATES MAGISTRATE JUDGE
26
27
28
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?