Pierce v. Hawks et al

Filing 59

ORDER signed by Chief Judge Morrison C. England, Jr. on 6/10/2013 ADOPTING, in full 51 Findings and Recommendations; DENYING 36 Motion to Revoke Plaintiff's In Forma Pauperis Status; ORDERING Defendants to answer Plaintiff's Complaint within 10 days. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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AARON JAMES PIERCE,
Plaintiff,

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No. 2:11-cv-3392 MCE DAD P

vs.
G. TURNER, et al.,
Defendants.

ORDER
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Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action

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seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

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On April 19, 2013, the Magistrate Judge filed findings and recommendations

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herein which were served on all parties and which contained notice to all parties that any

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objections to the findings and recommendations were to be filed within fourteen days.

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Defendants have filed objections to the findings and recommendations (ECF No. 54), and

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Plaintiff has filed a response to defendants’ objections (ECF No. 56). Specifically, Defendants

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object to the Magistrate Judge’s Finding and Recommendations with respect to its proposal that

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the Plaintiff’s third case, Pierce v. Woodford, et. al., No. C 09-03343 JF (PR), does not constitute

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a strike for the purposes of revoking Plaintiff’s in froma pauperis (“IFP”) status. The Court
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reviewed the documents Defendant submitted regarding Pierce in its Request for Judicial Notice

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(ECF No. 37, Ex. 2), and the Court agrees with the Magistrate Judge that Pierce was dismissed

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for failure to file an amended complaint, not on the grounds that it was “frivolous or malicious or

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failed to state a claim upon which relief may be granted.” Thus, the dismissal does not operate

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as a strike under 28 U.S.C. § 1915(g) and the Magistrate Judge properly denied Defendant’s

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Motion to revoke Plaintiff’s IFP status.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule

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304, this court has conducted a de novo review of this case. Having carefully reviewed the

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entire file, the court finds the findings and recommendations to be supported by the record and

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by proper analysis.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed April 19, 2013, are adopted in full

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(ECF No. 51);

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2. Defendants’ January 3, 2013 motion to revoke plaintiff’s in forma pauperis

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status is denied (ECF No. 36); and

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3. Defendants shall answer plaintiff’s complaint within ten days from the date of

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this order.

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IT I S SO ORDERED.

19 Date: June 10, 2013
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___________________________________________
MORRISON C. ENGLAND, JR., CHIEF JUDGE
UNITED STATES DISTRICT COURT

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