(PC) Scott v. Chau ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICKEY LEON SCOTT, No. 1:19-cv-01079-DAD-JDP (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY 14 J. CHAN, et al., PLAINTIFF’S REQUEST TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. No. 2) 16 17 18 Plaintiff Rickey Leon Scott is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. On August 5, 2019, plaintiff commenced this action by filing a 20 complaint (Doc. No. 1) and a motion to proceed in forma pauperis (Doc. No. 2). The matter was 21 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 22 302. 23 On August 12, 2019, the assigned magistrate judge issued findings and recommendations, 24 recommending that plaintiff’s application to proceed in forma pauperis be denied and that he be 25 required to pay the $400.00 filing fee in full to proceed with this action because: (1) he is subject 26 to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations of plaintiff’s complaint 27 do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 28 No. 4 at 2.) Those findings and recommendations were served on plaintiff and contained notice 1 that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.) On 2 September 16, 2019, plaintiff filed objections to the pending findings and recommendations. 3 (Doc. No. 6.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 5 conducted a de novo review of the case. Having carefully reviewed the entire file, including 6 plaintiff’s objections, the undersigned concludes that the findings and recommendations are 7 supported by the record and proper analysis. 8 Plaintiff’s primary objections to the findings and recommendations are that the cases cited 9 by the magistrate judge as prior strike dismissals were brought by plaintiff twenty-eight years 10 ago, and that he had pro bono counsel in Scott v. Smith, so that case “must be viewed on [his] 11 feeling of disgruntled for pro bono’s lost on proper litigation, not [him] personally.” (Doc. No. 6 12 at 3) (sic). But, the three strikes bar under 28 U.S.C. § 1915(g) is not subject to expiration or time 13 limits; the passage of time has no effect on whether a prior dismissal constitutes a strike dismissal 14 under the statute. Additionally, though plaintiff asserts that he had pro bono counsel in Scott v. 15 Smith, the pending findings and recommendations do not rely on the two Scott v. Smith cases as 16 prior trikes, and the court’s dismissal orders in those cases reflect that plaintiff had represented 17 himself pro se. See Scott v. Smith, 1999 U.S. Dist. LEXIS 49, No. C 98-4920 MHP (N.D. Cal. 18 1999); Scott v. Smith, 1999 U.S. Dist. LEXIS 1209, No. C 99-394 MHP (N.D. Cal. 1999). 19 Accordingly, plaintiff’s objections provide no basis upon which to reject the pending findings and 20 recommendations. Furthermore, plaintiff’s objections do not address the magistrate judge’s 21 finding that the allegations set forth in plaintiff’s complaint are insufficient to trigger the 22 “imminent danger of serious physical injury” exception under § 1915(g). 23 Accordingly: 24 1. The findings and recommendations (Doc. No. 4) issued on August 12, 2019, are 25 adopted in full; 26 2. In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma 27 pauperis (Doc. No. 2) is denied; 28 ///// 1 3. Within twenty-one (21) days following service of this order, plaintiff shall pay the 2 $400.00 filing fee in full to proceed with this action; 3 4. Plaintiff's failure to pay the filing fee within the specified time will result in the 4 dismissal of this action; and 5 5. This matter is referred back to the assigned magistrate judge for proceedings 6 consistent with this order. 7 | ITIS SO ORDERED. a 8 Li. wh F Dated: _ January 13, 2020 Sea 1" S098 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28