1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEX LEONARD AZEVEDO, No. 2:24-cv-03104-DC-CKD (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING 14 KEVIN SMITH, PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS, AND DIRECTING 15 Defendant. PLAINTIFF TO PAY THE FILING FEE WITHIN 30 DAYS 16 (Doc. No. 7) 17 18 Plaintiff Alex Leonard Azevedo is a state prisoner proceeding pro se in this civil rights 19 action pursuant to

. The matter was referred to a United States Magistrate Judge 20 pursuant to

(b)(1)(B) and Local Rule 302. 21 On December 4, 2024, the assigned magistrate judge issued findings and 22 recommendations recommending that Plaintiff’s application to proceed in forma pauperis (Doc. 23 No. 2) be denied because: (1) he is subject to the three strikes bar under

(g); and 24 (2) the allegations in Plaintiff’s complaint do not satisfy the “imminent danger of serious physical 25 injury” exception to § 1915(g). (Doc. No. 7.) The magistrate judge also recommended Plaintiff be 26 ordered to pay the required $405.00 filing fee. (Id. at 2.) The findings and recommendations were 27 served on Plaintiff and contained notice that any objections thereto were to be filed within 28 fourteen (14) days after service. (Id. at 2.) On December 12, 2024, Plaintiff filed objections to the 1 pending findings and recommendations. (Doc. No. 8.) 2 In his objections, Plaintiff first argues the court should not count two of his dismissed 3 cases as strikes under § 1915(g), because the orders dismissing those cases were issued during his 4 prior incarceration. (Id. at 1–2.) Plaintiff’s argument is unavailing. “The argument that strikes are 5 ‘reset’ with each period of incarceration ‘is inconsistent with the plain language of [Section] 6 1915(g), which applies to any ‘prisoner’ who ‘while incarcerated or detained in any facility’ earns 7 three strikes.’” Azevedo v. United States E. Dist. Cts. of Cal., No. 24-cv-01404-JLT,

16355, at *5 (E.D. Cal. Jan. 2, 2025) (quoting Johnson v. Mesa, No. 19-cv-00164-KKM-PRL, 9

, at *2 (M.D. Fla. Feb. 11, 2011)). Additionally, Plaintiff argues he is unable to 10 afford the filing fee and alleges that this district court and state courts are conspiring to prevent 11 him from litigating his cases. (Id. at 2–4.) The court is also not persuaded by this argument 12 because he is not wholly prevented from litigating cases in federal court; rather, he may litigate 13 cases so long as he pays the required filing fee or alleges facts sufficient to satisfy the “imminent 14 danger of serious physical injury” exception to § 1915(g). 15 In accordance with the provisions of

(b)(1)(C), the court has conducted a 16 de novo review of the case. Having carefully reviewed the entire file, including Plaintiff’s 17 objections, the court concludes that the findings and recommendations are supported by the 18 record and by proper analysis. 19 Accordingly, 20 1. The findings and recommendations issued on December 4, 2024 (Doc. No. 7) are 21 ADOPTED; 22 2. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is DENIED; 23 3. Within thirty (30) days from the date of service of this order, Plaintiff shall pay the 24 $405.00 filing fee in full in order to proceed with this action; 25 ///// 26 ///// 27 ///// 28 ///// 1 4. Plaintiff is forewarned that failure to pay the filing fee within the specified time 2 will result in the dismissal of this action; and 3 5. This matter is referred to the assigned magistrate judge for further proceedings 4 consistent with this order. 5 6 7 IT IS SO ORDERED. □ g | Dated: _ February 18, 2025 EIU Os Dena Coggins 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28