(PC) Ruiz v. Hubbard

Filing 12

ORDER signed by District Judge John A. Mendez on 9/9/2020 ADOPTING in FULL 9 Findings and Recommendations. DENYING 2 Motion to Proceed In Forma Pauperis. Plaintiff is directed to pay the $400.00 filing fee within 30 days after an order adopting these F & R's. DENYING without prejudice 10 Motion for appointment of counsel, and DENIED as MOOT 11 Motion for Extension of time. (Reader, L)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGELIO MAY RUIZ, 12 No. 2:19-cv-2350 JAM AC P Plaintiff, 13 v. 14 A. HUBBARD, 15 ORDER Defendant. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. On July 30, 2020, the magistrate judge filed findings and recommendations herein, finding 20 21 that plaintiff is a three-strikes litigant. The findings and recommendations were served on 22 plaintiff and contained notice that any objections to the findings and recommendations were to be 23 filed within fourteen days. Plaintiff has filed objections to the findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 26 //// 27 //// 28 //// 1 1 court finds the findings and recommendations to be supported by the record and by proper 2 analysis. 1 3 Accordingly, IT IS HEREBY ORDERED that: 4 1. The findings and recommendations filed July 30, 2020, are adopted in full; 5 2. Plaintiff’s application to proceed in forma pauperis, ECF No. 2, is denied; and 6 3. Plaintiff is directed to pay the $400 filing fee within thirty (30) days after an order 7 adopting these findings and recommendations; failure to do so will result in the dismissal of this 8 action without prejudice. 9 10 4. Further, plaintiff’s motion for appointment of counsel, ECF No. 10, is denied without prejudice, and plaintiff’s motion for extended time, ECF No. 11, is denied as moot. 11 12 DATED: September 9, 2020 /s/ John A. Mendez____________ 13 _____ UNITED STATES DISTRICT COURT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff asks the court to determine whether two of his three strikes are the same case. See ECF No. 10 at 2. Review of these cases demonstrates that Ruiz v. Curry, Case No. 1:17-cv-1454 DAD SAB (E.D. Cal.), and Ruiz v. Curry, Case No.1:17-cv-1407 SAD SKO (E.D. Cal.) are distinct cases; both cases were originally filed in the Northern District and accorded unrelated case numbers before being transferred to this court. Therefore they continue to count as twi strikes. In addition, plaintiff seeks to “withdraw” his third strike, Ruiz v. McGuire, Case No. 3:16-cv-0388 AJB BLM (S.D. Cal.), noting that further orders were issued in that case after its dismissal. ECF No. 10 at 2. Review of the docket in that case demonstrates that plaintiff continued to file documents resulting in numerous ‘discrepancy” orders, none of which vacated the dismissal of the case for failure to state a claim or providing a ground upon which plaintiff may seek its “withdrawal” as a strike. 2

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