Crane v. Rodriguez et al

Filing 50

ORDER signed by Magistrate Judge Kendall J. Newman on 03/03/16 ordering defendants request for judicial notice 41 is granted. Defendants motion to revoke 40 is granted. Plaintiff's in forma pauperis status 6 is revoked. Plaintiff's request to defer payment 49 is granted, within 60 days from the date of this order, plaintiff shall submit the administrative fee of $50.00. Defendants shall file their responsive pleading 14 days after plaintiff submits the administrative fee. Discovery is stayed until defendants responsive pleading has been filed. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSEPH CRANE,

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Plaintiff,

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No. 2:15-cv-0208 TLN KJN P

v.

ORDER

RODRIGUEZ, et al.,

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Defendants.

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Plaintiff is a state prisoner, proceeding without counsel. On January 12, 2015, defendants

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filed a motion to revoke plaintiff’s in forma pauperis status, based on an order from the Northern

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District of California finding that plaintiff had sustained three strikes under 28 U.S.C. § 1915(g).

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(ECF No. 40.) Defendants ask the court to take judicial notice of the September 9, 2009 order

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issued in Crane v. Cate, Case No. C 08-04454 JF (PR) (N.D. Cal.). (ECF No. 41.)

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In his opposition, plaintiff argues that the motion to revoke is moot because plaintiff has

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paid the full filing fee. Plaintiff provided a copy of the receipt from the court demonstrating he

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has paid the court the sum of $350.00. (ECF No. 47 at 6-9.) Plaintiff asks that defendants’

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motion be dismissed in its entirety. (ECF No. 47 at 4.) In addition, on February 29, 2016,

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plaintiff filed a request for a sixty day extension of time in the event the court determines he has

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not paid the full filing fee. (ECF No. 49.)

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Although plaintiff asks that defendants’ motion to revoke be “dismissed in its entirety,” it

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appears that plaintiff does not dispute that he was previously found to be struck out under

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§ 1915(g). Indeed, review of the order from the Northern District reflects that plaintiff could not

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demonstrate that he has not sustained three strikes. The court takes judicial notice of the order,

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which identifies three lawsuits filed by plaintiff that have been dismissed on the grounds that they

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were frivolous or failed to state a claim upon which relief may be granted. (ECF No. 41 at 4-8.)

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Plaintiff failed to substantively oppose defendants’ motion to revoke, and does not contend that

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he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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Therefore, defendants’ motion to revoke plaintiff’s in forma pauperis status is granted.

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Because plaintiff is no longer proceeding in forma pauperis, he is obligated to pay the court’s

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$50.00 administrative fee, in addition to the $350.00 filing fee which he has paid. Thus, plaintiff

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must pay the additional $50.00 before this action may proceed. Plaintiff’s request for an

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extension of time in which to submit this fee is granted. Defendants shall file their responsive

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pleading fourteen days after plaintiff remits the $50.00 fee. Plaintiff shall notify defendants when

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the $50.00 administrative fee has been paid.

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Plaintiff is cautioned that failure to pay the $50.00 will result in a recommendation that

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this action be dismissed. Discovery remains stayed until defendants file their responsive

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pleading.

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Good cause appearing, IT IS HEREBY ORDERED that:

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1. Defendants’ request for judicial notice (ECF No. 41) is granted;

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2. Defendants’ motion to revoke (ECF No. 40) is granted;

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3. Plaintiff’s in forma pauperis status (ECF No. 6) is revoked;

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4. Plaintiff’s request to defer payment (ECF No. 49) is granted; within sixty days from

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the date of this order, plaintiff shall remit the administrative fee of $50.00;

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5. Defendants shall file their responsive pleading fourteen days after plaintiff submits the

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administrative fee; and

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6. Discovery is stayed until defendants’ responsive pleading has been filed.
Dated: March 3, 2016

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/cran0208.mtd.ifp

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