(PC) Cortinas v. Soltanian

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, Case No. 2:20-cv-1067-DAD-JDP (P) 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 JALLA SOLTANIAN, et al., 15 Defendants. 16 17 18 Plaintiff is a county inmate proceeding pro se and in forma pauperis in this civil rights 19 action filed under 42 U.S.C. § 1983. Now, more than five years after the court granted plaintiff’s 20 application to proceed in forma pauperis, defendants move to revoke plaintiff’s in forma pauperis 21 status on the ground that he is a “three-striker” within the meaning of 28 U.S.C. § 1915(g) and 22 that the “imminent danger” exception does not apply. ECF No. 157. In the alternative, 23 defendants ask that the court direct plaintiff to file a new in forma pauperis application because 24 he was briefly out of custody. Defendants’ motion should be denied. 25 Defendants argue that plaintiff had incurred three strikes before he filed this action; 26 Cortinas v. Gillingham, No. 5:99-cv-20730 (N.D. Cal.); Cortinas v. Scalia, No. 1:14-cv-2015 27 (E.D. Cal.); and Cortinas v. Allison, No. 1:19-cv-1244 (E.D. Cal.). ECF No. 157-1 at 6-7. The 28 1 | final case, Cortinas v. Allison, however, does not count as a strike because plaintiff voluntarily 2 | dismissed that action. See Spencer v. Barajas, 140 F. 4th 1061, 1064, at *5 (9th Cir. 2025) (“Rule 3 | 41(a)(1) voluntary dismissals cannot count as strikes.”). The undersigned is also disinclined to 4 | require plaintiff to file a renewed application because he is back in custody. ECF No. 157 at 3. 5 Accordingly, it is RECOMMENDED that defendants’ motion to revoke plaintiffs in 6 | forma pauperis status, ECF No. 157, be denied. 7 These findings and recommendations are submitted to the United States District Judge 8 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days of 9 | service of these findings and recommendations, any party may file written objections with the 10 | court and serve a copy on all parties. Any such document should be captioned “Objections to 11 | Magistrate Judge’s Findings and Recommendations,” and any response shall be served and filed 12 | within fourteen days of service of the objections. The parties are advised that failure to file 13 | objections within the specified time may waive the right to appeal the District Court’s order. See 14 | Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 15 1991). 16 M IT IS SO ORDERED. 18 19 | Dated: _ September 3, 2025 ssn (Whe —— 0 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28