(PC) Driver v. KVSP ADA 1824 Panel(s) ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, Jr., Case No. 1:20-cv-00146-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 KVSP ADA #1824 PANEL(S), FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 15 Defendant. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 16 (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Billy Driver, Jr. (“Plaintiff”) is a state prisoner proceeding pro se in this civil 20 rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on January 29, 2020. 21 (ECF No. 1.) Currently before the Court is Plaintiff’s motion for leave to proceed in forma 22 pauperis. (ECF No. 2.) Plaintiff’s certified trust account statement was filed on January 31, 23 2020. (ECF No. 6.) 24 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 27 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 28 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 1 physical injury.”1 Plaintiff has been informed in prior cases that he is subject to 28 U.S.C. 2 § 1915(g).2 3 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 4 the imminent danger exception to section 1915(g).3 Andrews v. Cervantes, 493 F.3d 1047, 5 1053−55 (9th Cir. 2007). Plaintiff alleges that he is suffering from unlawful obstruction of 6 meaningful access to court and exhaustion denials. Specifically, Plaintiff claims that he is being 7 denied the opportunity to exhaust his administrative remedies with respect to a prior request for 8 reasonable accommodations under the ADA. (ECF No. 1.) Plaintiff alleges that he will be 9 injured because he will miss an important filing deadline on his administrative appeal. However, 10 Plaintiff does not allege that he is or will be under imminent danger of serious physical injury as a 11 result of these alleged violations. Therefore, Plaintiff has not alleged any imminent danger of 12 serious physical injury at the time of filing and has not satisfied the exception from the three 13 strikes bar under 28 U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to 14 litigate this action. 15 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 16 District Judge to this action. 17 /// 18 1 The Court takes judicial notice of the following United States District Court cases: (1) Driver v. Martel, 19 Case No. 2:08-cv-01910-GEB-EFB (E.D. Cal.) (dismissed September 16, 2009, for failure to state a claim), aff’d, Case No. 09-17309 (9th Cir. Oct. 6, 2010); (2) Driver v. Epp, Case No. 2:12-cv-00589-EFB (E.D. Cal.) (dismissed 20 September 5, 2012, for failure to state a claim); (3) Driver v. Kelso, Case No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed September 12, 2012 for failure to state a claim), aff’d, Case No. 12-17228 (9th Cir. May 20, 2013); and 21 (4) Driver v. Zamora, Case No. 2:14-cv-02170-BRO-AGR (C.D. Cal.) (dismissed August 21, 2014, for failure state a claim), aff’d, Case No. 14-56519 (9th Cir. Nov. 17, 2015). 22 The Court also takes judicial notice of the following United States Court of Appeals cases: (1) Driver v. Mora, Case No. 15-55224 (9th Cir.) (dismissed May 15, 2015, for failure to pay the filing fee, following a denial of 23 in forma pauperis status for filing a frivolous appeal); and (2) Driver v. United States, Case No. 19-1942 (Fed. Cir.) (dismissed November 7, 2019, as frivolous). 24 See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central 25 question is whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.”) (citing El- Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted). 26 2 See, e.g., Driver v. U.S. Special Master, Case No. 1:17-cv-00202-DAD-BAM (E.D. Cal.) (dismissed January 1, 2018, for failure to pay the filing fee, following a finding that plaintiff accrued three prior strikes under 28 27 U.S.C. § 1915(g), and did not qualify for the “imminent danger” exception). 28 3 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Further, it is HEREBY RECOMMENDED that: 2 1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 3 U.S.C. § 1915(g); and 4 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 5 action. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 9 file written objections with the court. The document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 11 objections within the specified time may result in the waiver of the “right to challenge the 12 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: February 3, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28