defining “strike” as prior case or appeal brought while plaintiff was prisoner that was dismissed 27 on ground that it was frivolous, malicious or it failed to state claim
How later courts described this case
- defining “strike” as prior case or appeal brought while plaintiff was prisoner that was dismissed 27 on ground that it was frivolous, malicious or it failed to state claim
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE EASTERN DISTRICT OF CALIFORNIA
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11 CHRISTOPHER LIPSEY, JR., No. 2:18-cv-1997 JAM AC P
12 Plaintiff,
13 v. ORDER
14 EDMUND G. BROWN, JR., et al.,
15 Defendants.
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17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief
18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge pursuant to
19 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
20 On May 19, 2020, the magistrate judge issued findings and recommendations herein
21 which were served on plaintiff and which contained notice to plaintiff that any objections to the
22 findings and recommendations were to be filed within twenty-one days. Plaintiff has filed a
23 statement of non-opposition, which the court construes as objections. ECF No. 15.
24 In the statement of non-opposition, plaintiff concedes that the complaint should be
25 dismissed without prejudice. See id. However, the statement also asks the court to: (1) state for
26 the record that the dismissal does not count as a strike, presumably within the meaning of 28
27 U.S.C. § 1915(g), and (2) permit him to refile the matter should either new evidence be found or a
28 change in circumstances occurs. See ECF No. 15.
1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this
2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the
3 court finds the findings and recommendations to be supported by the record and by proper
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5 Accordingly, IT IS HEREBY ORDERED that:
6 1. The findings and recommendations issued May 19, 2020 (ECF No. 12) are ADOPTED
7 in full, and
8 2. This action is DISMISSED without prejudice for failure to state a claim upon which
9 relief may be granted. See 28 U.S.C. § 1915A(b)(1).
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DATED: August 31, 2020
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/s/ John A. Mendez____________ _____
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13 UNITED STATES DISTRICT COURT JUDGE
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25 1 Case law does not permit the court to state that the dismissal of an action for failure to state a
26 claim will not count as a strike. See Andrews v. King, 398 F.3d 1113, 1116 (9th Cir. 2005)
(defining “strike” as prior case or appeal brought while plaintiff was prisoner that was dismissed
27 on ground that it was frivolous, malicious or it failed to state claim). However, absent any
statutory limitations, a dismissal without prejudice – which the court does herein – will permit
28 plaintiff to file a new complaint should the facts in the action change.