Blackwell

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL AARON WITKIN, No. 2:17-cv-2692 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND

RECOMMENDATIONS

14 D. BLACKWELL, et al., 15 Defendants. 16 17 Plaintiff, a former state inmate proceeding without an attorney, seeks relief pursuant to 42 18 U.S.C. § 1983. Currently pending before the court is defendants’ motion to dismiss pursuant to 19 28 U.S.C. § 1915(e)(2)(A). ECF No. 31. The motion is fully briefed. See ECF No. 35, 36. For 20 the reasons explained below, the undersigned recommends the court deny defendants’ motion. 21 I. Background 22 A. Complaint and In Forma Pauperis (“IFP”) Application 23 On December 26, 2017, while plaintiff was an inmate in state custody, he filed a 24 complaint initiating this case. ECF No. 1. On January 4, 2018, plaintiff filed a motion to 25 proceed IFP. ECF No. 3. In his IFP application, signed December 14, 2014, plaintiff declared 26 under penalty of perjury that: he was “unable to pay the fees…