Opinion
NO. CV 19-10578-JFW (KS)
03-11-2020
ARVELLO TUFONO, Plaintiff, v. J. WILLIAMS, et al, Defendant.
ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636, the Court has reviewed the Complaint, all of the records herein, the Report and Recommendation of United States Magistrate Judge ("Report"), and Plaintiff's Objections to the Report ("Objections"). Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), the Court has conducted a de novo review of those portions of the Report to which objections have been stated.
Having completed its review, the Court accepts the findings and recommendations set forth in the Report. In doing so, the Court amends the Report to correct the following typographical oversights:
(1) On page 3 line 11, the citation sentence is corrected to read: "Harris v. Mangum, 863 F. 3d 1133, 1139 (9th Cir. 2017) (citing El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)).";
(2) On page 4 line 4, the word "orders" is added at the end of the phrase "to prosecute and comply with court";
(3) On page 4 line 20, a third "7" is added at end of number "477."
Additionally, the Court has considered Plaintiff's argument, raised for the first time in his Objections, that the Northern District's dismissal of Tufono v. Nwaizugbu, No. C 10-4777 RMW (PR) (N.D. Cal. Jan. 31, 2011) does not constitute a "strike" because: "[Plaintiff] was indigent, lacking sanitary, being housed in maximum security unit — at the same time having his incoming and outgoing mail coming up mysteriously missing — now at that time, less than 90 days after [Plaintiff] filed complaint . . . [Plaintiff] paroled out . . . [and] never received the Northern District of California court['s] dismissal on 1-31-2011—so he never had a clue of the status or the need to amend." (Objections at 2 (errors in original).) Plaintiff's assumption that the Northern District dismissed Plaintiff's case against James Nwaizugbu after Plaintiff missed the deadline for filing a First Amended Complaint is incorrect. The Northern District dismissed Plaintiff's case against Nwaizugbu without granting Plaintiff leave to amend because it determined that the complaint failed to state a claim and leave to amend would be futile. Accordingly, the Court accepts the finding that the Northern District's dismissal of Tufono v. Nwaizugbu, No. C 10-4777 RMW (PR) (N.D. Cal. Jan. 31, 2011) constitutes a "strike" for the purposes of 28 U.S.C. § 1915(g). \\ \\ \\ \\ \\ \\
IT IS THEREFORE ORDERED that the Complaint is DISMISSED and judgment shall be entered dismissing this action without prejudice. DATED: March 11, 2020
/s/_________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE