(PC) Jones v. CCI-Richards ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARLAND A. JONES, Case No. 1:20-cv-00639-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION 14 RICHARDS, et al., (Doc. 7) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Plaintiff Garland A. Jones, a state prisoner proceeding pro se, initiated this civil rights 19 action on April 3, 2020. (Doc. 1.) Before the Court is Plaintiff’s application to proceed in forma 20 pauperis pursuant to 28 U.S.C. § 1915. (Doc. 7.) Because Plaintiff has three “strikes” under 21 section 1915(g) and fails to show that he is in imminent danger of serious physical injury, the 22 Court recommends that his application be denied and this action dismissed without prejudice. 23 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 24 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 25 event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more 26 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 27 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 1 of serious physical injury.” 28 U.S.C. § 1915(g). 2 II. DISCUSSION 3 The Court takes judicial notice of three of Plaintiff’s prior actions that were dismissed 4 because they failed to state a claim on which relief can be granted1: (1) Jones v. Tolson, et al., No. 5 1:15-cv-01037-JDP (E.D. Cal.) (dismissed on September 14, 2015, for failure to state a claim); 6 (2) Jones v. Mailroom Officials, et al., No. 1:17-cv-00281-LJO-SKO (E.D. Cal) (dismissed on 7 January 9, 2019, for failure to state a claim); (3) Jones v. California Correctional Healthcare 8 Services, et al., No. 2:17-cv-00738-WBS-DB (E.D. Cal) (dismissed on April 26, 2019, for failure 9 to state a claim). All of these cases were dismissed before Plaintiff initiated the current action on 10 April 3, 2020. Plaintiff is therefore precluded from proceeding in forma pauperis unless, at the 11 time he filed his complaint, he was under imminent danger of serious physical injury. See 12 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 13 Plaintiff alleges the defendants failed to prevent his transfer to R.J. Donavan Correctional 14 Facility despite “inmates with predatory behavior chronos” and “harassment by inmates and 15 staff,” including staff’s issuance of “fraudulent RVRs.” (Doc. 1 at 3.) Plaintiff requests that the 16 Court order prison staff to stop issuing false RVRs and halt all “mail violations.” (See id.) These 17 allegations fail to show that Plaintiff is in imminent danger of serious physical injury. 18 III. CONCLUSION AND RECOMMENDATIONS 19 Based on the foregoing, the Court RECOMMENDS that: 20 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 7) be DENIED; and, 21 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 22 filing fee. 23 The Clerk of the Court is DIRECTED to assign a district judge to this action. 24 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 26 of the date of service of these Findings and Recommendations, Plaintiff may file written 27 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 1 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 2 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 3 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 Sheila K. Oberto 6 Dated: May 28, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27