Opinion
2:19-cv-02518-DAD-DMC
01-22-2023
ROGELIO MAY RUIZ, Plaintiff, v. POPPACHAN SMINI, Defendant.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, IN PART, AND GRANTING DEFENDANT'S MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (Doc. Nos. 40, 49)
Plaintiff Rogelio May Ruiz is a state prisoner appearing pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 13, 2022, defendant filed a motion requesting an order revoking plaintiff's in forma pauperis status because, prior to filing this action, plaintiff had accrued three or more prior dismissals that count as strikes under 28 U.S.C. § 1915(g). (Doc. No. 40.) Plaintiff was granted an extension of time in which to file an opposition to the pending motion to revoke his in forma pauperis status, and plaintiff was warned that “the court may deem the failure to oppose the pending motion . . . as consent to the relief requested” in the motion. (Doc. No. 44.) Nevertheless, plaintiff did not file an opposition to the motion.
Accordingly, on September 6, 2022, the assigned magistrate judge issued findings and recommendations recommending that defendant's unopposed motion to revoke plaintiff's in forma pauperis status under 28 U.S.C. § 1915(g) be granted and that plaintiff's action be dismissed and that “[t]his action be dismissed without prejudice to refiling upon pre-payment of filing fees therefor.” (Doc. No. 49 at 2.) The findings and recommendations were served on all parties and contained notice that any objections thereto were to be filed within fourteen (14) days. (Id. at 2.) Plaintiff received a 30-day extension of time in which to file objections to the pending findings and recommendations. (Doc. No. 52.) To date, neither party has filed objections to the pending findings and recommendations and the time in which to do so has now passed.
On October 11, 2022, plaintiff filed a copy of the court's order granting plaintiff an extension of time in which to file objections, but that document does not contain any objections. (Doc. No. 53.) Rather, that filing merely contains brief handwritten notes at the top of the first page in which plaintiff requests an interpreter. (Id.) As noted in defendant's response to that filing, in which defendant asks the court to deny plaintiff's renewed request for an interpreter, the court has denied plaintiff's four prior requests for an interpreter in this case. (Doc. No. 54) (citing Doc. Nos. 30, 35, 36, 42, 52).
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a de novo review of the case. Having carefully reviewed the entire file, the court concludes that the magistrate judge's findings and recommendations are supported by the record and proper analysis. The undersigned has also reviewed defendant's motion to revoke plaintiff's in forma pauperis status and agrees that the prior dismissals relied upon by defendant do count as strikes under 28 U.S.C. § 1915(g). However, rather that dismiss this action at this time, without prejudice to plaintiff's refiling upon pre-payment of filing fees, the undersigned finds it appropriate to provide plaintiff with an opportunity to pay the filing fee for this action.
Accordingly, 1. The findings and recommendations issued on May 13, 2022 (Doc. No. 49) are adopted, in part;
2. Defendant's motion to revoke plaintiff's in forma pauperis status (Doc. No. 40) is granted;
3. Plaintiff's in forma pauperis is revoked;
4. Within thirty (30) days from the date of service of this order, plaintiff shall pay the $402.00 filing fee in full in order to proceed with this action;
5. Plaintiff is forewarned that failure to pay the filing fee within the specified time will result in the dismissal of this action; and
6. This matter is referred back to the assigned magistrate judge for further proceedings consistent with this order.
IT IS SO ORDERED.