(PC) Harris v. Moser ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARVIN HARRIS, Case No. 1:19-cv-01117-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT PLAINTIFF 11 v. BE REQUIRED TO PAY THE $400.00 FILING FEE IN FULL 12 R. MOSER, et al., OBJECTIONS, IF ANY, DUE WITHIN 13 Defendants. TWENTY-ONE (21) DAYS 14 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 15 16 I. BACKGROUND 17 Marvin Harris (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 18 action. Plaintiff filed the complaint commencing this action on August 15, 2019. (ECF No. 1). 19 Plaintiff did not pay the filing fee or file an application to proceed in forma pauperis. 20 As the Court finds that Plaintiff had at least “three strikes” prior to filing this action and 21 that Plaintiff was not in imminent danger of serious physical injury at the time he filed the 22 action, the Court will recommend that Plaintiff be required to pay the $400 filing fee in full if 23 he wants to proceed with the action. 24 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) 25 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 26 that “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, 27 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 28 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 1 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 2 under imminent danger of serious physical injury.” 3 In determining whether a case counts as a “strike,” “the reviewing court looks to the 4 dismissing court's action and the reasons underlying it…. This means that the procedural 5 mechanism or Rule by which the dismissal is accomplished, while informative, is not 6 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal citation omitted). 7 See also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (quoting Yourish v. Cal. 8 Amplifier, 191 F.3d 983, 986–87 (9th Cir. 1999) (alteration in original) (“no ‘particular 9 formalities are necessary for an order that serves as the basis of [an involuntary] dismissal.’”). 10 III. PLAINTIFF CANNOT PROCEED IN FORMA PAUPERIS IN THIS ACTION 11 a. Strikes 12 Plaintiff initiated this action on August 15, 2019. (ECF No. 1). The Court finds that, 13 prior to this date, Plaintiff had at least five cases dismissed that count as “strikes.” The Court 14 takes judicial notice of: 1) Harris v. Pliler, E.D. CA, Case No. 2:01-cv-01125, ECF Nos. 20 & 15 22 (dismissed for failure to state a claim); 2) Harris v. Edmonds, E.D. CA, Case No. 1:00-cv- 16 05857, ECF Nos. 18 & 21 (dismissed as frivolous and for failure to state a claim); 3) Harris v. 17 Edmonds, E.D. CA, Case No. 1:00-cv-07160, ECF Nos. 17 & 19 (dismissed for failure to state 18 a claim); 4) Harris v. Glass, E.D. CA, Case No. 2:00-cv-00937, ECF Nos. 15 & 16 (dismissed 19 for failure to state a claim); and 5) Harris v. Harris, E.D. CA, Case No. 2:14-cv-00977, ECF 20 Nos. 6 & 10 (dismissed as frivolous and for failure to state a claim). 21 b. Imminent Danger 22 As Plaintiff had at least “three strikes” prior to filing this action, Plaintiff is precluded 23 from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was filed, in 24 imminent danger of serious physical injury. The availability of the imminent danger exception 25 “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier 26 or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). “Imminent danger 27 of serious physical injury must be a real, present threat, not merely speculative or 28 hypothetical.” Blackman v. Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016). To 1 meet his burden under § 1915(g), Plaintiff must provide “specific fact allegations of ongoing 2 serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent 3 serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague 4 and utterly conclusory assertions” of imminent danger are insufficient. White v. Colorado, 157 5 F.3d 1226, 1231–32 (10th Cir. 1998). See also Martin v. Shelton, 319 F.3d 1048, 1050 (8th 6 Cir. 2003) (“[C]onclusory assertions” are “insufficient to invoke the exception to § 7 1915(g)….”). The “imminent danger” exception is available “for genuine emergencies,” where 8 “time is pressing” and “a threat… is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 9 (7th Cir. 2002). 10 Additionally, “the complaint of a three-strikes litigant must reveal a nexus between the 11 imminent danger it alleges and the claims it asserts, in order for the litigant to qualify for the 12 ‘imminent danger’ exception of § 1915(g). In deciding whether such a nexus exists, we will 13 consider (1) whether the imminent danger of serious physical injury that a three-strikes litigant 14 alleges is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a 15 favorable judicial outcome would redress that injury. The three-strikes litigant must meet both 16 requirements in order to proceed [in forma pauperis].” Stine v. Fed. Bureau of Prisons, 2015 17 WL 5255377, at *3 (E.D. Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 18 298–99 (2d Cir. 2009)). 19 Because Plaintiff is pro se, in making the imminent danger determination the Court 20 must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 1055 (9th Cir. 2007). 21 Plaintiff’s appears to be complaining that he was denied certain privileges (dayroom 22 time, yard time, and phone calls) because he failed to report to school. There are no allegations 23 from which the Court could draw an inference that Plaintiff was in imminent danger of serious 24 physical injury at the time he filed the complaint. 25 As Plaintiff is a “three-striker” and does not appear to have been in imminent danger 26 when he filed this action, the Court will recommend that Plaintiff not be allowed to proceed in 27 forma pauperis in this case and that he be required to pay the $400 filing fee in full. 28 /// 1 |{IV. CONCLUSION AND RECOMMENDATIONS 2 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this 3 || action. 4 Accordingly, it is HEREBY RECOMMENDED that: 5 1. Pursuant to 28 U.S.C. § 1915(g), Plaintiff not be allowed proceed in forma pauperis 6 in this action; and 7 2. Plaintiff be directed to pay the $400.00 filing fee in full if he wants to proceed with 8 this action. 9 These findings and recommendations will be submitted to the United States district 10 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(). Within 11 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 12 || may file written objections with the Court. The document should be captioned “Objections to 13 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 |) Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 |) (9th Cir. 1991)). 17 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 18 || judge to this case. 19 50 IT IS SO ORDERED. 2: |! Dated: _ August 16, 2019 [Jee heey — 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28