Lipseyv.De La Rosa

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIAJun 12, 2019
No. 2:19-cv-0589 KJN P (E.D. Cal. Jun. 12, 2019)

No. 2:19-cv-0589 KJN P

06-12-2019

CHRISTOPHER LIPSEY, JR., Plaintiff, v. DE LA ROSA, et al., Defendants.


ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner, proceeding without counsel. By order filed May 6, 2019, the undersigned found that plaintiff had sustained at least three strikes under 28 U.S.C. § 1915(g) prior to filing the instant action:

1. Lipsey v. SATF Prisons Ad Seg Property Officers, et al., Civil Case No. 1:15-cv-00691-LJO-SKO-PC (E.D. Cal. June 6, 2018 Order dismissing action for failure to state a claim) (strike one);

2. Lipsey v. Court of Appeal, et al., Civil Case No. 2:17-cv-08985-AG-JC (C.D. Cal. Dec. 27, 2017 Order of dismissal as frivolous, malicious, or for failure to state a claim) (strike two);

3. Lipsey v. Secretary of CDCR, et al., Civil Case No. 2:17-cv-05094 AG(JC) (C.D. Cal. May 16, 2018 Order of dismissal for failure to state a claim, failure to comply with court order, and failure to prosecute) (strike three); and

4. Lipsey v. M. Guzman, et al., Civil Case No. 1:17-cv-00896-AWI-EPG-PC (E.D. Cal. July 3, 2018 Order of dismissal for failure to state a claim) (strike four). (ECF No. 6 at 2, n.1, quoting Lipsey v. Mendoza, No. 1:18-cv-0969 LJO GSA (E.D. Cal.)

Further, the undersigned found that plaintiff failed to allege any facts suggesting he faced imminent danger of serious physical injury at the time he filed the instant action. (ECF No. 6 at 2.) Plaintiff was ordered to pay the court's filing fee within twenty-one days. (Id.)

On May 20, 2019, plaintiff filed a reply claiming he should be allowed to proceed in forma pauperis because the instant complaint against defendants De La Rosa, et al., was filed on October 31, 2017, and plaintiff did not suffer his third strike until May 16, 2018. (ECF No. 7 at 2.) As proof, plaintiff appended a copy of page one of a civil rights complaint against De La Rosa, et al., that bears an October 13, 2017 file stamp by the Clerk of the Eastern District, but no court case number other than the banner from plaintiff's May 20, 2019 reply. (ECF No. 7 at 4.)

Plaintiff's current complaint was signed by him on March 26, 2019, and filed with this court on April 2, 2019. Court records do not reflect any other civil rights action filed by plaintiff against defendant De La Rosa in 2017 or at any other time prior to 2019. Nevertheless, the four cases relied upon in the court's prior order were all dismissed in 2017 or 2018, prior to the filing of the instant action, and therefore support the court's finding that plaintiff sustained at least three strikes under 28 U.S.C. § 1915(g) prior to filing the instant action on April 2, 2019.

By order filed May 6, 2019, plaintiff was ordered to submit, within twenty-one days, the appropriate filing fee in order to proceed with this action, and was cautioned that failure to do so would result in a recommendation that this action be dismissed. The twenty-one day period has expired, and plaintiff has not paid the filing fee.

In accordance with the above, IT IS HEREBY ORDERED that the Clerk of the Court is directed to assign a district judge to this case; and

IT IS RECOMMENDED that this action be dismissed without prejudice.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: June 12, 2019

/s/_________


KENDALL J. NEWMAN


UNITED STATES MAGISTRATE JUDGE lips0589.fpf.1915