(PC) Martinez v. Zepp ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, Case No. 1:20-cv-00646-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION 14 A. ZEPP, et al., (Doc. 9) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. (Doc. 9.) Because Plaintiff has three “strikes” under section 1915(g) and fails to 20 show that he is in imminent danger of serious physical injury, the Court recommends that his 21 application be denied and this action dismissed. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 24 event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more 25 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 26 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 27 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. DISCUSSION 2 The Court takes judicial notice of four of Plaintiff’s prior lawsuits that were dismissed 3 because they failed to state a claim on which relief can be granted:1 (1) Martinez v. Davey, et al., 4 No. 1:16-cv-00084-LJO-BAM (E.D. Cal.) (dismissed on October 30, 2017 for failure to state a 5 claim, failure to obey a court order, and failure to prosecute); (2) Martinez v. Davey, No. 1:16-cv- 6 01655-AWI-BAM (E.D. Cal) (dismissed on March 5, 2018 for failure to state a claim); (3) 7 Martinez v. Lewis, et al., No. 1:19-cv-00812-DAD-SAB (E.D. Cal) (dismissed on December 16, 8 2019 for failure to state a claim); and, (4) Martinez v. Pfeiffer, et al., No. 1:19-cv-01684-DAD- 9 SAB (E.D. Cal.) (dismissed on March 30, 2020 for failure to state a claim). All of these cases 10 were dismissed before Plaintiff initiated the current action on May 4, 2020. Therefore, plaintiff is 11 precluded from proceeding in forma pauperis in this action unless, at the time he filed his 12 complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes, 13 493 F.3d 1047, 1052-53 (9th Cir. 2007). 14 Plaintiff’s claims in his complaint stem from an incident that occurred on March 28, 2019. 15 (See Doc. 1 at 3, 6, 8, 10, 14, 22.) Plaintiff alleges that a doctor at Kern Valley State Prison “did 16 a[n] intentional forceful act, on patient’s left shoulder,” even though the doctor knew of 17 “Plaintiff’s tumors, lesions, and ‘tremendous pain,’ being present at the left side of the spinal 18 cord…. As a result of the conduct[] Plaintiff’s tumors increased a[s] did his pain.” (Doc. 1 at 6.) 19 Plaintiff’s allegations do not show that he is in imminent danger of serious physical injury. 20 III. CONCLUSION AND RECOMMENDATIONS 21 Based on the foregoing, the Court RECOMMENDS that: 22 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 9) be DENIED; and, 23 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 24 filing fee. 25 The Clerk of the Court is DIRECTED to assign a district judge to this action. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 1 of the date of service of these Findings and Recommendations, Plaintiff may file written 2 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 3 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 4 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 5 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: May 15, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27