IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
January 2, 2013
WALTER SHANE LANGSTON, PLAINTIFF,
WIN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Carolyn K. Delaney United States Magistrate Judge
Plaintiff is a California prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. Two matters are before the court.
I. Motion To Revoke Plaintiff's In Forma Pauperis Status On May 24, 2012, the court granted plaintiff's request to proceed in forma pauperis (IFP). Defendant Win (defendant) has filed a motion requesting that plaintiff's IFP status be revoked pursuant to 28 U.S.C. § 1915(g). That statute reads as follows:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding [in forma pauperis] 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.
Defendant points to three actions brought in this court which defendant believes constitute "strikes."*fn1 One of the cases is Langston v. Cal. Dep't of Corrections, 1:01-cv-5762 OWW SMS P. While that case was brought by a "Walter Langston," it was not brought by plaintiff. That "Walter Langston's" California Department of Corrections and Rehabilitation identification number was H-66998 and he was housed at Pleasant Valley State Prison when the action was commenced. See Dkt. No. 4 at 3. On September 17, 2001, the other "Walter Langston" informed that court that he had been paroled to Oakland.
At the time 1:01-cv-5762 OWW SMS P was commenced, plaintiff's inmate number was, as it is now, P-53446, and he was housed at Deuel Vocational Institution where he remained until 2002. Opp'n, Ex. C at 7. Furthermore, the subject matter of 1:01-cv-5762 OWW SMS P concerns events occurring at Pleasant Valley State Prison. Records provided by plaintiff indicate he was never housed there. Opp'n, Ex. C.*fn2
Because Langston v. Cal. Dep't of Corrections, 1:01-cv-5762 OWW SMS P does not count as a "strike" under 28 U.S.C. § 1915(g), defendant's motion to have plaintiff's IFP status revoked will be denied.*fn3
II. Plaintiff's Motion For Entry Of Default
Plaintiff asserts default should be entered against defendant. However, when plaintiff filed his motion on November 26, 2012, the deadline for defendant to file his response to plaintiff's amended complaint, December 9, 2012 (see Dkt. No. 25) had not yet passed. Therefore, plaintiff's motion will be denied. Because defendant Win has not yet filed an answer or any other proper response to plaintiff's amended complaint as described in Rule 12 of the Federal Rules of Civil Procedure, defendant will be granted 14 days within which to do so.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendant Win's motion for an order revoking plaintiff's in forma pauperis status (Dkt. No. 21) is denied.
2. Plaintiff's motion for entry of default (Dkt. No. 23) is denied.
3. Defendant Win is granted an extension of time of 14 days to file his response to plaintiff's amended complaint.