(PC) Joshua Bland v. Gamboa ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOSHUA BLAND, Case No. 1:20-cv-00794-JDP 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 12 v. PROCEED IN FORMA PAUPERIS AND REQUIRE PAYMENT OF FILING FEE 13 C. GAMBOA, et al., WITHIN TWENTY-ONE DAYS 14 Defendants. ECF No. 2 15 OBJECTIONS DUE IN 30 DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 17 18 19 Plaintiff Joshua Bland is a state prisoner proceeding without counsel in this civil rights 20 action brought under 42 U.S.C. § 1983. Plaintiff’s complaint alleges a variety of legal 21 violations—including violations of the First, Second, Fourth, Fifth, Eighth, Ninth, Thirteenth, and 22 Fourteenth Amendments, as well as federal copyright laws—by more than 20 named and 23 unnamed defendants, and requests injunctive relief and $100 million in damages. ECF No. 1. 24 Plaintiff has also filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. ECF 25 No. 2. 26 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 27 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 28 1 detained in any facility, brought an action or appeal in a court of the United States that was 2 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 3 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 4 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 5 for failing to state a claim upon which relief maybe granted.1 Plaintiff’s own compliant suggests 6 that he has filed approximately 26 previous lawsuits. See ECF No. 1 at 3. 7 Plaintiff has not satisfied the imminent danger exception to § 1915(g). That exception 8 applies if the “the complaint makes a plausible allegation that the prisoner faced ‘imminent 9 danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 10 1055 (9th Cir. 2007). Plaintiff’s complaint contains no such plausible allegation. While plaintiff 11 appears to allege physical and sexual harassment, he does not allege imminent danger of serious 12 physical injury at the time of filing. Moreover, plaintiff’s complaint contains numerous 13 implausible allegations that detract from any overall plausibility. These include plaintiff’s claim 14 that he is a prisoner of war, see ECF No. 1 at 1, and plaintiff’s allegation that the California 15 Department of Corrections and Rehabilitation owes him almost $100 million for copyright 16 violations, see id. at 12. 17 Accordingly, plaintiff’s in forma pauperis applications should be denied, and he should 18 pay the filing fee in full, since he has accrued three or more strikes and does not allege that he 19 faced imminent danger of serious physical harm at the time he initiated this action. See 28 U.S.C. 20 § 1915(g). 21 Order 22 The clerk of court is directed to assign this case to a district judge who will review the 23 findings and recommendations. 24 Findings and Recommendations 25 Based on the foregoing, it is hereby recommended that: 26 1. Plaintiff’s in forma pauperis application, ECF No. 2, be denied; 27 1 These include case numbers 1:18-cv-01357-LJO-EPG, 1:18-cv-01358-AWI-JDP, and 1:19-cv- 28 00197-DAD-BAM, all three of which were dismissed for failure to state a claim. wOAOe 4: OU VEY ET INNY INR VR MMU POC eT eT OY VMI 1 2. Plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 2 | of these findings and recommendations; and 3 3. If plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 4 | these findings and recommendations, all pending motions be terminated, and this action be 5 | dismissed without prejudice. 6 We submit these findings and recommendations to a district judge under 28 U.S.C. § 7 | 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 8 | Eastern District of California. Within thirty days of the service of the findings and 9 | recommendations, plaintiff may file written objections to the findings and recommendations with 10 || the court and serve a copy on all parties. That document should be captioned “Objections to 11 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 12 | and recommendations under 28 U.S.C. § 636(b)(1)(C). 13 4 IT IS SO ORDERED. 15 ( Caan Dated: _ June 24, 2020 16 UNI STATES MAGISTRATE JUDGE 17 18 | No. 205. 19 20 21 22 23 24 25 26 27 28