The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DENYING DEFENDANTS' MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (ECF Nos. 96, 98) OBJECTIONS DUE WITHIN THIRTY DAYS
Findings and Recommendations
Plaintiff Eric Charles Rodney Knapp ("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 third amended complaint, filed September 29, 2010, against Defendants Koenig, Pate, Otto, Backlund, Roberson, Clay, Gibb, Hannah, Semsen, Lyons, and Esquer for deliberate indifference to Plaintiff's need for single cell status in violation of the Eighth Amendment. On March 9, 2012, Defendants filed a motion to revoke Plaintiff's in forma pauperis status. (ECF No. 96.) Plaintiff filed an opposition on March 26, 2012. (ECF No. 98.)
II. Motion to Revoke Plaintiff's Informa Pauperis Status
Defendants claim that Plaintiff has, on three or more occasions, had actions dismissed as frivolous, malicious, or for failure to state a claim, and he is therefore precluded from proceeding in this action in forma pauperis pursuant to 28 U.S.C. § 1915(g). Defendants contend that in K'napp v. Arlitz, No. 1:09-cv-00412 (E.D.Cal.), Plaintiff's in forma pauperis status was revoked pursuant to section 1915(g), because the court found that Plaintiff had filed three or more actions that were deemed to be strikes. Defendants argue that Knapp v. Knowles, et al., No. 2:03-cv-00394-DFL-PAN (E.D.Cal. 2004), Knapp v. Knowles, et al. No. 2:06-cv-00453-GEB-GGH (E.D.Cal. 2007), Knapp v. Harrison, No. 2:06-cv-07702-JVS-RC (C.D.Cal. 2008); and Knapp v. Knowles, et al., No. 04-16701 (9th Cir. Mar. 7, 2005)are all strikes under section 1916, and thereby, Plaintiff is precluded from proceeding in forma pauperis in this action.
Plaintiff objects to Defendants' motion on the grounds that it fails to comply with the Local Rules because the documents are printed on both sides of the paper, and are therefore not a true copy of the original on file with the court. Plaintiff states that due to the manner in which the documents were copied, he has been unfairly prejudiced in violation of the Local Rules. Plaintiff also argues that he is entitled to proceed in forma pauperis because the court would have to conclude that he is in imminent danger and entitled to the exception allowing him to proceed in forma pauperis.
Additionally, Plaintiff argues that Defendants are requesting the Court to take judicial notice of unrelated cases and violate the Federal Rule of Evidence 201 by accepting them for their truth and accuracy. The Court cannot take judicial notice of the factual findings in these cases. Defendants have not met their initial burden of production and, therefore, have not shifted the burden of persuasion to Plaintiff. Nor have Defendants provided sufficient evidence for the court to ascertain whether Plaintiff has accumulated three strikes at the time this action was initiated. Defendants rely on dismissals that were not final and therefore have no force or affect on this action. Defendants count as dismissals actions that may not properly be counted as strikes pursuant to section 1916(g).
Section 1915(g) provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, 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." "[I]f the language of a statute is clear, we look no further than that language in determining the statute's meaning," unless "what seems to be the plain meaning of the statute . . . lead[s] to absurd or impracticable consequences." Seattle-First Nat'l Bank v. Conaway, 98 F.3d 1195, 1197 (9th Cir. 1996) (internal quotations and citations omitted).
It is well established that a court may take judicial notice of its own records. Trigueros v. Adams, 658 F.3d 983, 987 (9th Cir. 2011); Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967). Therefore, the ...