Opinion
1:19-cv-00034-DAD-SKO (PC)
11-24-2021
ANDRE L. REVIS, Plaintiff, v. J. MOORE, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND GRANTING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (DOC. NOS. 40, 43)
Plaintiff Andre L. Revis is a state prisoner proceeding 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 October 29, 2021, the assigned magistrate judge issued findings and recommendations recommending that defendants' motion to revoke plaintiff's in forma pauperis status (Doc. No. 40) be granted because: (1) plaintiff is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations of plaintiff's complaint do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. No. 43 at 2) (citing Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007)). The magistrate judge also recommended that plaintiff be ordered to pay the required $400.00 filing fee in full in order to proceed with this action. (Id. at 2-3.) The findings and recommendations were served on the parties and contained notice that any objections thereto were to be filed within twenty-one (21) days after service. (Id. at 3.) On November 8, 2021, plaintiff timely filed objections to the pending findings and recommendations. (Doc. No. 44.)
When plaintiff initiated this action in 2019, the applicable filing fee, including administrative fees was $400.00.
In his objections, defendant does not appear to contest that he has accumulated at least three prior strike dismissals, enough to be barred from proceeding in forma pauperis by the “three strikes” provision. Rather, defendant indicates that he is endeavoring “to obtain or make arrangements to pay the court ordered [] filing fees, ” and that he requests an extension of time in which to do so. (Doc. No. 44 at 1-2.) Plaintiff also indicates that he anticipates receiving a stimulus check under the C.A.R.E.S. Act and that he would be able to pay the filing fee from those funds. (Id. at 2.) Accordingly, plaintiff's objections provide no basis upon which to reject the pending findings and recommendations.
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, including plaintiff's objections, the court concludes that the magistrate judge's findings and recommendations are supported by the record and proper analysis.
Accordingly,
1. The findings and recommendations issued on October 29, 2021 (Doc. No. 43) are adopted;
2. Defendants' 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 $400.00 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.