(PC) Youngblood v. Esquerra ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE L. YOUNGBLOOD, CASE NO. 1:19-cv-01179 JLT (PC) 12 Plaintiff, ORDER TO ASSIGN DISTRICT JUDGE; AND 13 v. FINDINGS AND RECOMMENDATIONS 14 ESQUERRA, et al., THAT PLAINTIFF BE REQUIRED TO PRE-PAY THE FILING FEE BEFORE 15 Defendants. PROCEEDING WITH THIS ACTION 16 (Doc. 1) 17 FOURTEEN-DAY DEADLINE 18 19 Plaintiff is a state prisoner who alleges a governmental employee violated plaintiff’s 20 constitutional rights. (Doc. 1.) Plaintiff has not, however, paid the filing fee or submitted a motion 21 to proceed in forma pauperis. For the reasons set forth below, the Court finds that plaintiff is 22 precluded from proceeding in forma pauperis because he is a three-strikes litigant within the 23 meaning of 28 U.S.C. § 1915(g), and he has not met the “imminent danger” exception. Accordingly, 24 the Court will recommend that he be required to pay the filing fee in this action before proceeding. 25 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous 26 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 27 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 28 1 1915(g), a non-merits related screening device which precludes prisoners with three or more 2 “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious 3 physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 4 2007). The statute provides that “[i]n no event shall a prisoner bring a civil action … under this 5 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 6 facility, brought an action or appeal in a court of the United States that was dismissed on the 7 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 8 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 9 Review of court records reveals that before plaintiff initiated this case, several lawsuits 10 filed by him have been dismissed on the grounds that they were frivolous or malicious or failed to 11 state a claim upon which relief may be granted: The Court takes judicial notice of eight of 12 plaintiff’s prior lawsuits. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). 13 (1) Youngblood v. State of California, et al., CAED No. 2:05-cv-00727-LKK-DAD, 14 dismissed for failure to state a claim on September 11, 2006; 15 (2) Youngblood v. Chico Parole Outpatient Clinic, et al., CAED No. 2:11-cv-02159-GGH, 16 dismissed for failure to state a claim on October 21, 2011; 17 (3) Youngblood v. State of California, et al., CAND No. 4:11-cv-04064-PJH, dismissed 18 for failure to state a claim on March 16, 2012; 19 (4) Youngblood v. Lamarque, et al., CAND No. 4:12-cv-04423-PJH, dismissed as 20 frivolous and for failure to state a claim on February 4, 2013; 21 (5) Youngblood v. Feather Falls Casino, CAND No. 4:13-cv-01282-PJH, dismissed as 22 frivolous and for failure to state a claim on February 28, 2013; 23 (6) Youngblood v. Evans, et al., CAND No. 4:13-cv-02097-PJH, dismissed a frivolous 24 and for failure to state a claim on May 14, 2013; 25 (7) Younghblood v. Warden, et al., CAND No. 4:13-cv-04366-PJH, dismissed for failure 26 to state a claim on November 12, 2013; and 27 (8) Youngblood v. Clark, et al., CAED No. 1:15-cv-01746-DAD-BAM (PC), dismissed 28 1 for failure to state a claim on August 15, 2017. Consequently, Plaintiff is not entitled to proceed 2 in forma pauperis, even had he applied to do so. Furthermore, the Court has reviewed plaintiff’s 3 complaint in this action and finds that he does not meet the imminent danger exception. See 4 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 5 Plaintiff’s allegations are based on a May 30, 2019, incident in which he claims he was 6 ordered to be double-celled despite the purported authorization by his clinician that he be single- 7 celled due to his mental health needs. Plaintiff alleges he was threatened with a Rules Violation 8 Report and potential loss of good time credits if he refused to be double-celled. Attachments to 9 the complaint reveal that plaintiff was indeed issued an RVR because he refused a cellmate 10 despite being cleared for double-cell housing in December 2018. It appears that plaintiff seeks 11 damages and a permanent medical chrono for single-cell housing. 12 The Court finds that plaintiff’s complaint allegations do not meet the imminent danger 13 exception. Andrews, 493 F.3d at 1053. Though the circumstances plaintiff complains of, if true, 14 are not desirable, his allegations do not show that he was in imminent danger of serious physical 15 injury when he filed this action on August 28, 20191. See Williams v. Paramo, 775 F.3d 1182, 16 1190 (9th Cir. 2015); Andrews, 493 F.3d at 1056-57. Thus, plaintiff is precluded from proceeding 17 in forma pauperis in this action. Andrews, 493 F.3d at 1056-57. 18 Accordingly, plaintiff is ineligible to proceed in forma pauperis in this action, and he 19 should be required to pre-pay the $400 filing fee to proceed in this case. 20 Based on the foregoing, the Court ORDERS the Clerk of Court to assign a District Judge 21 to this action; and 22 The Court RECOMMENDS that plaintiff be required to pay the $400 filing fee before 23 proceeding with this case. 24 These Findings and Recommendations will be submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after 26 being served with these Findings and Recommendations, plaintiff may file written objections with 27 1 Moreover, unless plaintiff is lawfully precluded from having a cellmate, prison officials act lawfully by issuing an 28 RVR to an inmate who refuses to accept a cellmate. 1 the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 2 Recommendations.” Plaintiff is advised that failure to file objections within the specified time may 3 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 4 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 IT IS SO ORDERED. 6 7 Dated: February 10, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28