(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)

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