IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
July 18, 2012
EDWARD THOMAS, PLAINTIFF,
THOMAS FELKER, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On June 11, 2012, the magistrate judge filed amended findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty-one days.
Plaintiff has filed objections to the amended findings and recommendations. He points out that one of the cases that the magistrate judge determined to be a "strike" in the instant findings was not deemed a "strike" in an earlier analysis by the magistrate. (Dkt. No. 63 at 2-3, 21-22.) The case at issue is the Ninth Circuit's dismissal of plaintiff's first appeal in Thomas v. Terhune, where the Ninth Circuit dismissed the appeal for "failure to prosecute" after plaintiff failed to both pay the filing fee and show good cause why the district court's judgment should not be summarily affirmed. (See Dkt. No. 62 at 5-6.) In Thomas v. Beutler, No. 2:10-cv-1300 MCE CKD P (E.D. Cal., Order dated December 15, 2011), the magistrate declined to find this appeal a "strike," citing the principle that "Generally, a dismissal for failure to prosecute does not fall within the plain language of section 1915(g)[.]" In the instant findings, however, the magistrate concludes that this appeal is a "strike" under O'Neil v. Price, 531 F.3d 1146, 1153-56 (9th Cir. 2008), which holds that when a court revokes plaintiff's IFP status based on the complaint's lack of merit and subsequently dismisses the case for failure to prosecute, this dismissal counts as a strike under section 1915(g). O'Neil's holding is not inconsistent with the general principle cited earlier, and O'Neil governs here, where the Ninth Circuit confirmed that plaintiff was not entitled to IFP status because his appeal was not taken in good faith. (See Dkt. No. 62 at 5.)
In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, 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 amended findings and recommendations filed June 11, 2012, are adopted in full;
2. Defendants' motion for order revoking plaintiff's in forma pauperis status (Docket No. 53) is granted;
3. Plaintiff is declared a three-strikes litigant pursuant to § 1915(g); and 4. Plaintiff is required to submit the $350.00 filing fee for this action or face dismissal of this action (as the imminent danger exception does not apply in this case).
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