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Christopher S. Rider v. A. Rangel

January 13, 2011

CHRISTOPHER S. RIDER,
PLAINTIFF,
v.
A. RANGEL, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

FINDINGS AND RECOMMENDATION RECOMMENDING THAT DEFENDANTS' MOTION TO DISMISS BE GRANTED IN PART AND PLAINTIFF'S IFP STATUS BE REVOKED

(ECF No. 38)

OBJECTIONS DUE 1/31/11

Plaintiff Christopher Rider ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Before the Court is Defendants' Motion to Dismiss Under 28 U.S.C. § 1915(g). Defendants argue that Plaintiff should not be allowed to proceed in forma pauperis ("IFP") given his prior litigation history. Defendants ask the Court to dismiss this action on the ground that Plaintiff was not entitled to bring this case IFP.

I. LEGAL STANDARD

Section 1915(g) of Title 28 of the United States Code provides: "In no event shall a prisoner bring a civil action . . . if the prisoner has, on 3 or more prior occasions . . . brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." This provision is commonly referred to as the "three strikes" provision of the Prisoner Litigation Reform Act of 1996. Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005).

II. ANALYSIS

A. Plaintiff's Strikes

Defendants contend that Plaintiff has at least six "strikes" and is therefore ineligible to proceed in forma pauperis. The Court will review each alleged strike in turn below.

1. Rider v. Hernandez, 1:07-cv-1862-LJO-SMS (E.D. Cal., filed Dec. 20, 2007)

The Court finds that Hernandez does not count as a strike for purposes of § 1915(g).

Plaintiff commenced the present action on September 12, 2007. (ECF No. 1.) Pursuant to section 1915(g), a prisoner is precluded from proceeding in forma pauperis in an action if the prisoner has had three prior dismissals. See 28 U.S.C. § 1915(g). Thus, for purposes of determining whether Plaintiff should be permitted to proceed in forma pauperis in this case, only dismissals that occurred prior to September 12, 2007 can count as "strikes".

The order dismissing Plaintiff's Complaint in Hernandez was not entered until February 22, 2008. It cannot, therefore, count as a strike ...


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