(PC) Blackman v. Ramos ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY BLACKMAN, No. 2:20-cv-0172 DB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 T. RAMOS, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se. He filed this action on January 23, 2020, 18 seeking relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local 19 Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Before the court is plaintiff’s complaint for 20 screening and plaintiff’s motion to proceed in forma pauperis. For the reasons set forth below, 21 this court finds plaintiff fails to meet the standards to proceed in forma pauperis and recommends 22 this action be dismissed if plaintiff fails to pay the filing fee. 23 IN FORMA PAUPERIS STATUTE 24 The Prison Litigation Reform Act of 1995 (“PLRA”) permits a federal court to authorize 25 the commencement and prosecution of any suit without prepayment of fees by a person who 26 submits an affidavit indicating that the person is unable to pay such fees. However, 27 [i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, 28 on 3 or more prior occasions, while incarcerated or detained in any 1 facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 2 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 3 4 28 U.S.C. § 1915(g). 5 This “three strikes rule” was part of “a variety of reforms designed to filter out the bad 6 claims [filed by prisoners] and facilitate consideration of the good.” Coleman v. Tollefson, 135 7 S. Ct. 1759, 1762 (2015) (quoting Jones v. Bock, 549 U.S. 199, 204 (2007)). If a prisoner has 8 “three strikes” under § 1915(g), the prisoner is barred from proceeding in forma pauperis unless 9 he meets the exception for imminent danger of serious physical injury. See Andrews v. Cervantes, 10 493 F.3d 1047, 1052 (9th Cir. 2007). To meet this exception, the complaint of a “three-strikes” 11 prisoner must plausibly allege that the prisoner was faced with imminent danger of serious 12 physical injury at the time his complaint was filed. See Williams v. Paramo, 775 F.3d 1182, 1189 13 (9th Cir. 2015); Andrews, 493 F.3d at 1055. 14 HAS PLAINTIFF ACCRUED THREE STRIKES? 15 Plaintiff has numerous lawsuits in this district. Recently, District Judges England, 16 Nunley, and Mueller each held that plaintiff had accrued three strikes prior to filing the 17 complaints in those cases. See Blackman v. Skelton, No. 2:18-cv-3273 MCE EFB (June 17, 2019 18 Order); Blackman v. Voong, No. 2:18-cv-0216 TLN AC (Mar. 16, 2018 Order); Blackman v. 19 Dixon, 2:18-cv-0079 KJM AC (Aug. 1, 2019 Order). In each case, the following prior cases were 20 identified as strikes: 21 1. Blackman v. Hartwell, No. 1:99-cv-5822 REC HGB (E.D. Cal.) (case dismissed on 22 March 12, 2001 for failure to state a claim); 23 2. Blackman v. Variz, No. 3:06-cv-6398 SI (N.D. Cal.) (case dismissed on December 18, 24 2006 for failure to state a claim); 25 3. Blackman v. Mazariegos, No. 3:06-cv-7625 SI (N.D. Cal.) (complaint dismissed with 26 leave to amend for failure to state a claim, case dismissed on September 4, 2007 for failure to file 27 an amended complaint); and 28 //// 1 4. Blackman v. Mazariegos, No. 3:07-cv-2021 SI (N.D. Cal.) (case dismissed on 2 September 5, 2007 for failure to state a claim). 3 Each of these cases was dismissed prior to the filing of the complaint in the present case 4 as well. Accordingly, plaintiff accrued three strikes prior to filing this case and may not proceed 5 unless he can show he “is under imminent danger of serious physical injury.” 28 U.S.C. § 6 1915(g). 7 IS PLAINTIFF IN IMMINENT DANGER OF SERIOUS PHYSICAL INJURY? 8 The availability of the imminent danger exception turns on the conditions a prisoner faced 9 at the time the complaint was filed, not at some earlier or later time. See Andrews, 493 F.3d at 10 1053. “[A]ssertions of imminent danger of less obviously injurious practices may be rejected as 11 overly speculative or fanciful.” Id. at 1057 n.11. Imminent danger of serious physical injury 12 must be a real, present threat, not merely speculative or hypothetical. To meet his burden under § 13 1915(g), an inmate must provide “specific fact allegations of ongoing serious physical injury, or a 14 pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. 15 Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm 16 are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the 17 “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” 18 and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 19 The court has reviewed plaintiff’s complaint filed January 23, 2020. Plaintiff lists over 20 150 defendants. While plaintiff’s complaint is difficult to interpret, he appears to be attempting to 21 state the following claims: (1) some defendants interfered with or failed to process his prison 22 appeals; (2) some defendants used prison computers to “change [their] identification;” and (3) he 23 is being denied law library access. Plaintiff does not allege that he was at risk of any sort of 24 physical injury at the time he filed his complaint. Therefore, plaintiff fails to meet the imminent 25 danger exception to § 1915(g). Plaintiff should only be permitted to proceed with this action if he 26 pays the filing fee. 27 //// 28 //// 1 Accordingly, the Clerk of the Court IS HEREBY ORDERED to randomly assign a district 2 | judge to this case; and 3 IT IS RECOMMENDED that: 4 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be denied; and 5 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 6 | order adopting these findings and recommendations and be warned that failure to do so will result 7 | in the dismissal of this action. 8 These findings and recommendations are submitted to the United States District Judge 9 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 10 | after being served with these findings and recommendations, plaintiff may file written objections 11 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 12 | and Recommendations.” Failure to file objections within the specified time may waive the right 13 || to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 14 | Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 15 | Dated: January 28, 2020 16 17 18 ‘BORAH BARNES UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 | DLB:9 DLB1/prisoner-civil rights/blac0172.3 strikes fr 24 25 26 27 28