Schwerdtfeger v. Paramo

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JOSEPH Case No.: 19-CV-2255 JLS (JLB) SCHWERDTFEGER, 12 ORDER (1) ADOPTING IN Plaintiff, 13 FULL REPORT AND v. RECOMMENDATION (ECF NO. 23); 14 (2) GRANTING DEFENDANT’S PARAMO, Warden; R. BUCKEL, Assoc. 15 MOTION TO REVOKE Warden Business Services; and PLAINTIFF’S IN FORMA PAUPERIS 16 UNKNOWN CDCR AGENT, STATUS (ECF NO. 14); (3) DENYING Supervisor of Plant Operations, 17 AS MOOT DEFENDANT’S MOTION Defendants. TO DISMISS COMPLAINT (ECF 18 NO. 9); AND (4) DECLINING TO 19 ADOPT AS MOOT REPORT AND RECOMMENDATION (ECF NO. 18) 20 AND DENYING AS MOOT 21 OBJECTIONS THERETO (ECF NO. 19) 22 23 (ECF Nos. 9, 14, 18, 19, 23)

25 Presently before the Court is Defendant R. Buckel’s Motion to Revoke Plaintiff’s in 26 Forma Pauperis (“IFP”) Status and Dismiss the Complaint (“2d Mot.,” ECF No. 14), as 27 well as Plaintiff Michael Joseph Schwerdtfeger’s opposition thereto (ECF No. 16) and 28 Defendant’s reply in support thereof (ECF No. 17). Also before the Court is Magistrate 1 Judge Jill L. Burkhardt’s Report & Recommendation advising the Court to grant 2 Defendant’s Second Motion (“2d R&R,” ECF No. 23). No party has filed objections to 3 the Second R&R. Also pending before the Court is Defendant’s Motion to Dismiss 4 Complaint (“1st Mot.,” ECF No. 9), Plaintiff’s opposition thereto (ECF No. 11) and 5 Defendant’s reply in support thereof (ECF No. 12), Magistrate Judge Burkhardt’s Report 6 & Recommendation advising the Court to grant Defendant’s First Motion (“1st R&R,” 7 ECF No. 18), and Plaintiff’s objections (ECF No. 19) and Defendant’s reply (ECF No. 20) 8 to the First R&R. 9 BACKGROUND 10 Magistrate Judge Burkhardt’s Second R&R contains a complete and accurate 11 recitation of the relevant facts and procedural history. See R&R at 2–4. This Order 12 incorporates by reference the background as set forth therein. 13 LEGAL STANDARD 14 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 15 court’s duties in connection with a magistrate judge’s R&R. The district court must “make 16 a de novo determination of those portions of the report or specified proposed findings or 17 recommendations to which objection is made,” and “may accept, reject, or modify, in 18 whole or in part, the findings or recommendations made by the magistrate judge.” 28 19 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980); United 20 States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). However, in the absence of timely 21 objection, the Court “need only satisfy itself that there is no clear error on the face of the 22 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 23 note (citing Campbell v. U.S. Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974)). 24 ANALYSIS 25 No party filed timely objections to the Second R&R. See 2d R&R at 16 (providing 26 that any party may file objections on or before March 12, 2021). The Court therefore 27 reviews the Second R&R for clear error. 28 / / / 1 Defendant moves to revoke Plaintiff’s IFP status and dismiss the complaint on the 2 basis that Plaintiff had already accrued at least three “strikes” at the time of filing this 3 lawsuit and Plaintiff does not qualify for the imminent danger exception to the “three 4 strikes” provision of the Prison Litigation Reform Act of 1995 (“PLRA”). See R&R at 6; 5 see generally 2d Mot. Magistrate Judge Burkhardt found that Defendant produced 6 sufficient evidence to establish that Plaintiff had accrued at least three strikes before filing 7 this action, and accordingly Plaintiff is not entitled to proceed IFP unless he meets the 8 PLRA’s imminent danger exception. 2d R&R at 13. Magistrate Judge Burkhardt further 9 concluded that Plaintiff was not covered by the imminent danger exception because 10 Plaintiff alleges that Defendant was deliberately indifferent to the substantial risk of serious 11 harm posed by the dormitory doors at R.J. Donovan Correctional Facility, but Plaintiff was 12 transferred to the California Health Care Facility in Stockton, California, prior to the filing 13 of the Complaint. Id. at 13–14 (citing ECF No. 1 at 1, 3–6). Magistrate Judge Burkhardt 14 found Plaintiff’s equitable arguments against revoking his IFP status unavailing. See id. at 15 14–15. As a result, Magistrate Judge Burkhard recommended that the Court adopt the 16 Second R&R, grant Defendant’s Second Motion, revoke Plaintiff’s IFP status, terminate 17 all pending motions, and dismiss the action without prejudice unless Plaintiff pays the $400 18 filing fees in full. Id. at 15 19 Plaintiff did not file objections to the Second R&R, and the Court finds no clear error 20 in the Second R&R. Accordingly, the Court ADOPTS the Second R&R and GRANTS 21 Defendant’s Second Motion. 22 CONCLUSION 23 The Court ADOPTS Magistrate Judge Burkhardt’s Second R&R (ECF No. 23) and 24 GRANTS Defendant’s Motion to Revoke Plaintiff’s IFP Status (ECF No. 14). The Court 25 REVOKES Plaintiff’s IFP status. Plaintiff SHALL PAY the full filing fees of $400 within 26 twenty-one (21) days of the date on which this Order is electronically docketed. Should 27 Plaintiff fail to timely pay the filing fees, the Court will dismiss this action without 28 prejudice. 1 In light of this disposition, the Court Court DENIES AS MOOT Defendant’s 2 Motion to Dismiss Complaint (ECF No. 9), without prejudice to Defendant renewing said 3 ||motion should Plaintiff timely file the applicable filing fees. Accordingly, the Court also 4 DECLINES TO ADOPT the First R&R as moot (ECF No. 18) and DENIES AS MOOT 5 || Plaintiff's objections thereto (ECF No. 19). 6 IT IS SO ORDERED. 7 ||Dated: March 15, 2021 . tt 8 jen Janis L. Sammartino 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28