(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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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EDWARD VINCENT RAY, JR.,

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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.

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Edward Vincent Ray, Jr. (“Plaintiff”) is a state prisoner proceeding pro se with this civil
rights action pursuant to 42 U.S.C. § 1983.

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On November 2, 2020, the court entered findings and recommendations, recommend ing

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that Plaintiff’s motion to proceed in forma pauperis, filed on October 27, 2020 be denied

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pursuant to 28 U.S.C. § 1915(g) and that Plaintiff be required to pay the $400.00 filing fee in full
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before proceeding with this action. (ECF No. 6.) In the findings and recommendations, the court

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stated that “on three prior occasions, Plaintiff has brought actions while incarcerated that were

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dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be

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granted.” (Id. at 3 ¶ 3A.) The three “strikes” found by the court arose from dismissals of three

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cases: (1) Ray v. Schoo, et al., Case No. 5:10-cv-00942-VAP-PJW (C.D. Cal.) (dismissed on

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January 2, 2014, for failure to state a claim); (2) Ray v. von Geldern, Case No. 4:12-cv-00315-

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YGR (N.D. Cal.) (dismissed on October 25, 2012, for failure to state a claim); and (3) Ray v. von

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Geldern, Appeal Case No. 12-17472, Ninth Circuit Court of Appeals (appellate court denied

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appeal as frivolous on February 28, 2013). (Id. at ¶ 3.)

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On November 16, 2020, Plaintiff filed objections to the findings and recommendatio ns.

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(ECF No. 8.) In the objections, Plaintiff argued that two of the three “strikes” relied upon in the

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findings and recommendations resulted from cases that had not been filed by Plaintiff.

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“[Of t]he filings that the Magistrate Judge relied upon, to deem plaintiff to have

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prior “strikes,” two of those three filings are not by this plaintiff. The Ray v. von

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Geldern case No. 12-cv-00315-YGR (N.D. Ca.) and the ‘Appeal’ from that case,

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Ray v. von Geldern Appeal Case No. 12-17472 Ninth Circuit Court of Appeals

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were in fact filed by this plaintiff’s son/‘codefendant,’ whose CDCR # is F-92909,

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named Edward Vincent Ray III, and is no longer in custody.”

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(Id. at ¶1.)

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The court finds that Plaintiff’s representation is correct and he did not file cases Ray v.

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von Geldern, Case No. 4:12-cv-00315-YGR (N.D. Cal. 2012), nor Ray v. von Geldern, Appeal

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Case No. 12-17472 (9th Cir 2012).1 Therefore, the court shall withdraw the findings and

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recommendations issued on November 2, 2020.

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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
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Accordingly, IT IS HEREBY ORDERED that the findings and recommendatio ns
entered on November 2, 2020, are WITHDRAWN.

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IT IS SO ORDERED.
Dated:

November 19, 2020

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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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.”).

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