(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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTWOINE BEALER,

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Plaintiff,

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v.
KERN VALLEY STATE PRISON,
Defendant.

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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.

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§ 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §

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636(b)(1)(B) and Local Rule 302.

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On December 12, 2018, the undersigned issued Findings and Recommendations

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recommending that Plaintiff’s application to proceed in forma pauperis be denied because Plaintiff had

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incurred three strikes under 28 U.S.C. § 1915(g) and failed to allege that he was in imminent danger of

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physical harm. (ECF No. 12.) In the Findings and Recommendations, the Court took judicial notice

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of the following cases: (1) Antwoine Bealer v. Wilson., No. 1:16-cv-00672-DAD-SAB (E.D. Cal.

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May 12, 2016) (dismissed for failure to state a claim); (2) Antwoine Bealer v. Kern Valley State

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Prison., No. 1:16-cv-00367-LJO-SKO (E.D. Cal. March 17, 2016) (dismissed for failure to state a

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claim); (3) Antwoine Bealer v. Kern Valley State Prison, No. 1:17-cv-01277-LJO-SAB (E.D. Cal.
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March 7, 2017) (dismissed for failure to state a claim). The Findings and Recommendations were

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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

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“has, on 3 or more prior occasions … brought an action … that was dismissed on the ground that it is

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frivolous, malicious, or fails to state a claim….” 28 U.S.C. § 1915(g) (emphasis added). The Ninth

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Circuit has noted that “‘[strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner,

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which were dismissed ‘on the ground that [they were] frivolous, malicious or fail [] to state a

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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

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cases Antwoine Bealer v. Kern Valley State Prison., No. 1:16-cv-00367-LJO-SKO (E.D. Cal. March

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17, 2016) (dismissed for failure to state a claim on June 12, 2018) and Antwoine Bealer v. Kern

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Valley State Prison, No. 1:17-cv-01277-LJO-SAB (E.D. Cal. March 7, 2017) (dismissed for failure to

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state a claim on October 25, 2018), were not dismissed until after he filed the instant action on May

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14, 2018. The Court will vacate the December 12, 2018, Findings and Recommendations, and based

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on a showing required by section 1915(a)(1), Plaintiff’s motion to proceed in forma pauperis will be

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granted.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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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

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shall issue the order directing payment of the filing fee by the California Department

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of Corrections and Rehabilitation.

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IT IS SO ORDERED.

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Dated:

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February 19, 2019
UNITED STATES MAGISTRATE JUDGE

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