Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided by Eastern District of California local rules.
On January 2, 2013, the magistrate judge filed findings and recommendations as part of his initial screening process, which were served on plaintiff and which contained notice that plaintiff could file objections within a specified time. Timely objections to the findings and recommendations have been filed.
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 file, the court declines to adopt the findings and recommendations.
The magistrate judge recommended plaintiff's in forma pauperis ("IFP") status be revoked under the Prison Litigation Reform Act's ("PLRA") three strikes requirement. (ECF 14.) The PLRA bars a prisoner from securing IFP status if he or she, while a prisoner, has brought three or more actions in federal court that were dismissed on the grounds they were "frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). A dismissed habeas petition does not count as a "strike" under 1915(g). Andrews v. King, 398 F.3d 1113, 1122 (9th Cir. 2005).
The magistrate judge concluded that plaintiff's IFP status should be revoked because plaintiff has accrued three strikes, citing three prior actions brought by plaintiff in this district: Ramey v. County of Fresno, 1:98-CV-5450-AWI-DLB-P; Ramey v. Dr. Loo, 1:98-CV-6327-OWW-SMS-P; and Ramey v. County of Fresno, 1:08-CV-0832-OWW-GSA-P. The magistrate judge does not indicate why each of these three cases counts as a strike under § 1915(g). The dockets in the latter two cases demonstrate that plaintiff's section 1983 claims were dismissed for failure to state a claim upon which relief may be granted. However, the docket in the first case, also a section 1983 action, does not reveal why plaintiff's claim was dismissed. Due to the date of its filing, an electronic version of the court's decision in the matter is not readily available, and the undersigned cannot otherwise locate a copy. Furthermore, the magistrate judge has not addressed whether any of plaintiff's prior cases is excepted from a determination of a three-strikes designation. On the record before the court, the findings and recommendations do not demonstrate that plaintiff's IFP status should be revoked.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed January 2, 2013 are not adopted;
2. This case is referred back to the magistrate judge for further proceedings.
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