Baker v. Marsh et al

Filing 14

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 6/5/13 RECOMMENDING that plaintiffs in forma pauperis status be revoked as improvidently granted; Plaintiff be barred from proceeding in this action under the three strikes provision of 28 U.S.C. § 1915(g) and plaintiff be directed to pay the filing fee in full within 28 days of adoption of these findings and recommendations, should that occur; and absent timely payment of the filing fee, the case be dismissed. Referred to Judge William B. Shubb; Objections to F&R due within 21 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY BAKER,
Plaintiff,

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No. 2:13-cv-0172 WBS AC P

vs.
MARSH, et al.,
Defendants.

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FINDINGS AND RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se, has filed a civil rights action under 42

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U.S.C. 1983. By Order filed on April 10, 2013, plaintiff was directed to show cause within

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twenty-one days why his in forma pauperis status should not be revoked as barred by the three

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strikes provision of 28 U.S.C. § 1915(g). ECF No. 10. In the April 10th Order the court

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identified those cases of plaintiff’s that constituted strikes and also determined that plaintiff’s

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First Amendment claim did not meet the “imminent danger of serious physical injury” exception

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of § 1915g). In a belated half-page response,1 plaintiff has failed to show cause why his in forma

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pauperis status should not be revoked. ECF No. 12. Plaintiff argues that his claims were not

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The response was filed on May 29, 2013, but dated at the bottom, without a proof of
service, a month earlier. As the court is considering the response, application of the mailbox rule
is not an issue.
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dismissed as frivolous, that an address change of his had at some point not been recorded

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properly by a court clerk and that the cases cited were all “against Solano County” and thus

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should count as only one complaint. Id. He also asserts that he is indigent.

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Plaintiff’s contentions are either unsupported by the record or irrelevant. The

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undersigned finds plaintiff to be barred from proceeding in this action by the three strikes

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provision of 28 U.S. C. § 1915(g). The court will recommend his in forma status be revoked and

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that he be required to pay the filing fee in full before proceeding.

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Accordingly, IT IS RECOMMENDED that, for the reasons set forth herein and in
the Order filed on April 10, 2013 (ECF No. 10):

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1. Plaintiff’s in forma pauperis status be revoked as improvidently granted;

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2. Plaintiff be barred from proceeding in this action under the three strikes

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provision of 28 U.S.C. § 1915(g) and plaintiff be directed to pay the filing fee in full within

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twenty-eight days of adoption of these findings and recommendations, should that occur; and

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3. Absent timely payment of the filing fee, the case be dismissed.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

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one days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file objections

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within the specified time may waive the right to appeal the District Courts order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: June 5, 2013

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ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE

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AC:009 bake0172.rev

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