United States District Court, E.D. California
LEON E. MORRIS, Plaintiff, V. MINI, et al., Defendants.
CRAIG M. KELLISON, Magistrate Judge.
Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. The undersigned has issued findings and recommendations that plaintiff's motion to proceed in forma pauperis be denied. Pending before the court are plaintiff's objections to the findings and recommendations.
In reviewing plaintiff's application to proceed in forma pauperis, the undersigned discovered that this court, as well as other district courts, previously found plaintiff ineligible to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g). See e.g., Morris v. Green, Case No. 2:12-cv-2448-JAM-CKD; Morris v. Woodford, No. C07-4198 MJJ (PR) , 2008 WL 906560 (N.D. Cal. Apr. 2, 2008). Plaintiff objects to this finding, stating that the cases used to find him ineligible to proceed in forma pauperis were erroneously counted as strikes, when they were not in fact dismissed for failure to state a claim. The undersigned has reviewed the cases plaintiff cited, as well as the other cases filed in this district and others. It is now apparent that the determination that plaintiff has filed three or more cases which were dismissed for failure to state a claim was done in error. At least one of the cases cited was dismissed for lack of jurisdiction, not failure to state a claim. See Morris v. Bradford, 2:11-cv-1171-KJM-DAD; Morris v. Nangalama, 2:12-cv-1202-MCE-KJN (finding by the Ninth Circuit on appeal that one of plaintiff's cases out of the Northern District of California was dismissed for lack of jurisdiction and should not have been counted as a strike).
Based on the undersigned's review of plaintiff's other cases, the undersigned agrees that he is not ineligible to proceed in forma pauperis. As such, the findings and recommendations to deny plaintiff's application will be vacated. By separate order, plaintiff's application will be granted, and this case will proceed.
Accordingly, IT IS HEREBY ORDERED that the findings and recommendations (Doc. 10) recommending plaintiff's application to proceed in ...