(PC) Ray v. Chefalo

Filing 9

ORDER WITHDRAWING 6 Findings and Recommendations signed by Magistrate Judge Gary S. Austin on 11/19/2020.(Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 EDWARD VINCENT RAY, JR., 12 13 14 15 Plaintiff, vs. 1:20-cv-01515-AWI-GSA-PC ORDER WITHDRAWING FINDINGS AND RECOMMENDATIONS ENTERED ON NOVEMBER 2, 2020 (ECF No. 6.) S. CHEFALO, Defendant. 16 17 18 19 20 21 22 23 24 25 Edward Vincent Ray, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. 26 On November 2, 2020, the court entered findings and recommendations, recommend ing 27 that Plaintiff’s motion to proceed in forma pauperis, filed on October 27, 2020 be denied 28 pursuant to 28 U.S.C. § 1915(g) and that Plaintiff be required to pay the $400.00 filing fee in full 1 1 before proceeding with this action. (ECF No. 6.) In the findings and recommendations, the court 2 stated that “on three prior occasions, Plaintiff has brought actions while incarcerated that were 3 dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be 4 granted.” (Id. at 3 ¶ 3A.) The three “strikes” found by the court arose from dismissals of three 5 cases: (1) Ray v. Schoo, et al., Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) (dismissed on 6 January 2, 2014, for failure to state a claim); (2) Ray v. von Geldern, Case No. 4:12-cv-00315- 7 YGR (N.D. Cal.) (dismissed on October 25, 2012, for failure to state a claim); and (3) Ray v. von 8 Geldern, Appeal Case No. 12-17472, Ninth Circuit Court of Appeals (appellate court denied 9 appeal as frivolous on February 28, 2013). (Id. at ¶ 3.) 10 On November 16, 2020, Plaintiff filed objections to the findings and recommendatio ns. 11 (ECF No. 8.) In the objections, Plaintiff argued that two of the three “strikes” relied upon in the 12 findings and recommendations resulted from cases that had not been filed by Plaintiff. 13 “[Of t]he filings that the Magistrate Judge relied upon, to deem plaintiff to have 14 prior “strikes,” two of those three filings are not by this plaintiff. The Ray v. von 15 Geldern case No. 12-cv-00315-YGR (N.D. Ca.) and the ‘Appeal’ from that case, 16 Ray v. von Geldern Appeal Case No. 12-17472 Ninth Circuit Court of Appeals 17 were in fact filed by this plaintiff’s son/‘codefendant,’ whose CDCR # is F-92909, 18 named Edward Vincent Ray III, and is no longer in custody.” 19 (Id. at ¶1.) 20 The court finds that Plaintiff’s representation is correct and he did not file cases Ray v. 21 von Geldern, Case No. 4:12-cv-00315-YGR (N.D. Cal. 2012), nor Ray v. von Geldern, Appeal 22 Case No. 12-17472 (9th Cir 2012).1 Therefore, the court shall withdraw the findings and 23 recommendations issued on November 2, 2020. 24 25 1 26 27 28 The court takes judicial notice of Case no. 4:12-cv-00315-YGR, Ray v. von Geldern, et al. (N.D. Cal. 01/20/12) and Appeal no. 12-17472, Ray v. von Geldern, et al. (9th Cir. 2012). Both of these cases were filed by Edward v. Ray III, CDC #F92909. Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See also Reyn’s Pasta Bella, LLC v. Visa 2 1 2 Accordingly, IT IS HEREBY ORDERED that the findings and recommendatio ns entered on November 2, 2020, are WITHDRAWN. 3 4 5 6 IT IS SO ORDERED. Dated: November 19, 2020 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (courts “may take judicial notice of court filings and other matters of public record.”). 28 3

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