ORDER ADOPTING FINDINGS AND RECOMMENDATION DENYING DEFENDANT VILLAGRANA'S MOTION TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS (ECF NOS. 25, 35)

ANTHONY W. ISHII, District Judge.

Plaintiff Robert Duane Franklin is a state prisoner proceeding pro se and in forma pauperis ("IFP") in this civil rights action filed pursuant to 42 U.S.C. § 1983. On November 10, 2014, the magistrate judge issued findings and recommendation that Defendant Villagrana's motion to revoke Plaintiff's IFP status (ECF No. 25) should be denied. (ECF No. 35 at 7:21-22.) Defendant filed objections to the findings and recommendation on November 19, 2014.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has conducted a de novo review of this case. Having carefully reviewed the entire file, the Court finds the findings and recommendation to be supported by the record and by proper analysis.

The objections do not raise an issue of law or fact under the findings and recommendation and there is no need to modify the findings and recommendation based on the objections.

Defendant objects the magistrate judge erred in finding that dismissal of the 2008 Dudley action ("Dudley") does not qualify as a strike. Defendant, conceding that dismissal of a claim on the merits is not a strike, argues that Dudley was not dismissed on the merits but rather because the claim had been previously litigated and thus collaterally estopped. Defendant points out the Dudley court, in its dismissal order, did not consider the "issue of. . . lack of submission of evidence." (ECF No. 36 at 18-21.) Defendant argues the Dudley dismissal is the equivalent of a dismissal for failure to state a claim and thus a strike. This argument is unavailing.

The Dudley court did not mention Section 1915(g) in its dismissal order. It is not apparent that the Dudley court based its dismissal on Section 1915(g). A dismissal does not count as a strike merely because a Section 1915(g) basis is suspected. See e.g., Tolbert v. Stevenson, 635 F.3d 646, 651 (4th Cir. 2011) (dismissal must be on grounds enumerated in Section 1915(g) for a strike to be incurred). Moreover, the utilization of summary judgment to develop claim preclusion facts suggests a disposition on the merits. See e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (summary judgment determines whether there are genuine issues for trial).

The cases Defendant cites in his objections are not authority that a grant of summary judgment based on collateral estoppel is a strike under 28 U.S.C. §1915(g). See Martinez v. U.S., 812, F.Supp.2d 1052, 1057 (C.D. Cal. 2010), citing Daniels v. Woodford, 2008 WL 2079010, *6-7 (C.D. Cal. May 13, 2008) (a case resolved by summary judgment does not fall within the plain language of Section 1915(g) as it is not equivalent to a dismissal on the grounds that the action is frivolous, malicious, or fails to state a claim upon which relief may be granted); Id. at 1057 (action dismissed as duplicative is not counted as strike).

Defendant also objects that a summary judgment dismissal need not explicitly state a 28 U.S.C. § 1915(g) basis in order for a strike to accrue. However, a dismissal is not a strike unless it is on a Section 1915(g) basis. See e.g., Hafed v. Federal Bureau of Prisons, 635 F.3d 1172, 1178 (10th Cir. 1011) (ambiguous dismissal order counts as strike where Section 1915(g) grounds are discussed and dismissal clearly fits within Section 1915(g)). The Dudley dismissal order was based on claim preclusion. Nothing suggests the Dudley court considered Section 1915(g) and based its dismissal thereon. See e.g., Smith v. Veterans Admin., 636 F.3d 1306, 1313 (10th Cir. 2011) (dismissal counts as a strike if made because the action if frivolous, malicious, or fails to state a claim).

Defendant's objections lack merit.

Accordingly, it is HEREBY ORDERED that:

IT IS SO ORDERED.