ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND REVOKING PLAINTIFF'S IN FORMA PAUPERIS STATUS (ECF Nos. 27, 33)
ORDER GRANTING PLAINTIFF'S MOTION FOR JUDICIAL NOTICE (ECF No. 34) / FORTY-FIVE DAY DEADLINE
Plaintiff Fred Price ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on the complaint filed March 24, 2008, against Defendants Cunningham and Mullins for deliberate indifference to a serious risk to Plaintiff's safety and use of excessive force in violation of the Eighth Amendment and Defendant Cunningham for retaliation. (ECF No. 1.) The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
Defendants filed a motion to revoke Plaintiff's in forma pauperis status on June 15, 2010, and Plaintiff filed an opposition on July 1, 2010. (ECF Nos. 19, 25.) Defendants filed a reply on July 6, 2010, and Plaintiff filed a response on July 16, 2010. (ECF Nos. 24, 26.) On March 10, 2011, the Magistrate Judge issued findings and recommendations recommending that Plaintiff's in forma pauperis status be revoked. (ECF No. 27.) Plaintiff filed objections on April 21, 2011. (ECF No. 33.) On May 3, 2011, Plaintiff filed a motion for the Court to take judicial notice of the order transferring the action. (ECF No. 34.)
Plaintiff argues that Price v. Parks, 2:02-cv-07724-UA-SH, should not count as a strike because it was dismissed for lack of jurisdiction and failure to state a claim. While actions that are dismissed for lack of jurisdiction are not strikes, they can count as strikes in some circumstances. O'Neal v. Price, 531 F.3d 1146, 1155 n9 (9th Cir. 2008). Here the action was dismissed for failure to state a claim, as well as lack of jurisdiction and it does constitute a strike under 28 U.S.C. 1915(g). Additionally, Plaintiff argues that the Magistrate Judge should have undertaken a de novo review of Price v. Rianda, 2:02-cv-07526-UA-SH, because he alleges that it was erroneously dismissed for failure to state a claim. The order dismissing this action clearly states that Plaintiff set forth three claims, none of which were cognizable under section 1983. If Plaintiff disagreed with the dismissal of this action his recourse was to file an appeal. This action also constitutes a strike under 28 U.S.C. 1915(g).
Finally, Plaintiff argues that the Magistrate was incorrect in determining that he was not in imminent danger at the time that he filed his complaint. Plaintiff invokes the mailbox rule. Since Plaintiff placed the complaint in the mail and was not transferred until a later date, he argues that he was in imminent danger when the complaint was filed. Plaintiff is correct that it is the circumstances that the inmate faces at the time the complaint is filed that are considered for the purposes of determining imminent danger. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007.)
Generally in a civil action the filing of the complaint is simultaneous with submission of the complaint. O'Neal, 531 F.3d at 1151. However, where the plaintiff is proceeding in forma pauperis the process is different. The suit is filed when the court authorizes the commencement of the suit without prepayment of fees. Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006). Where an inmate submits a complaint and will be proceeding in forma pauperis the complaint would not be considered filed at the time it was placed in the prison mail. O'Neal, 531 F.3d at 1151. Plaintiff was transferred on February 4, 2008. Plaintiff's Response 1, ECF No. 26. The Court will grant Plaintiff's motions and takes judicial notice that this action was transferred to the Eastern District on March 24, 2008. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.l (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981). The complaint was lodged on February 12, 2008, by the Northern District and in forma pauperis status was granted on March 11, 2008. Plaintiff was not in imminent danger at the time the complaint was filed as he had already been transferred from the institution.
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendations to be supported by the record and by proper analysis.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations, filed March 10, 2010, is adopted in full;
2. Plaintiff's motion for judicial notice is GRANTED;
3. Defendants' motion to revoke Plaintiff's in forma pauperis status, filed June 15, 2010, is GRANTED;
4. Plaintiff's in forma pauperis status is REVOKED and the order granting Plaintiff's application to proceed in forma pauper on March 11, 2008, is VACATED to the extent it permitted Plaintiff permission to pay the civil filing fee pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1) and (2);
5. Plaintiff must, within forty five (45) days from the date this order is filed, submit the entire $350 civil filing fee the Clerk of Court as ...