(PC) Young v. Godwin ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ZURI S. YOUNG, No. 1:20-cv-00540-NONE-JLT (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS, AND 14 J. GODWIN, et al., DISMISSING ACTION WITHOUT PREJUDICE 15 Defendants. (Doc. Nos. 2, 5) 16 17 Plaintiff Zuri S. Young is a state prisoner proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On April 16, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending that plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) be denied 22 because plaintiff has suffered more than three prior “strikes” under 28 U.S.C. § 1915(g). (Doc. 23 No. 5.) The magistrate judge further found that the allegations of plaintiff’s complaint fail to 24 show that he is in imminent danger of serious physical injury. (Id. at 2.) 25 Plaintiff filed timely objections on April 27, 2020. (Doc. No. 7.) In his objections, 26 plaintiff contends that the “court can not [sic] rely on statements from other judges and courts,” 27 given that the court does not have access the other cases’ complaints. (See id. at 2.) Plaintiff 1 failure to prosecute, not a strike.” (Id.) Plaintiff also argues that the imminent danger exception 2 to § 1915(g) should apply because he has sustained “permanent scarring from the weapons used 3 on [him] at CCI Tehachapi on 10-15-19 by Defendants and there [sic] subordinates,” and there is 4 a “continued conspiracy to murder [him].” (Id. at 1–2.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 6 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 7 objections, the court finds the findings and recommendations to be supported by the record and 8 proper analysis. As an initial matter, contrary to plaintiff’s assertion, courts indeed have access to 9 federal cases’ complaints and other case records, and they can take judicial notice of such records, 10 United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980), which is what the magistrate judge 11 did in this case. (Doc. No. 5 at 2.) The magistrate judge correctly found that three of plaintiff’s 12 prior cases have been dismissed for failure to state a claim on which relief can be granted. (Id.) 13 In a fourth case, Young v. Sumptner, No. 2:05-cv-03653-CBM-E (C.D. Cal.), the district court 14 dismissed the case for failure to file an amended complaint, after the court had dismissed the 15 original complaint with leave to amend for failure to state a claim. (Id.) The Ninth Circuit has 16 held that when a “court dismisses a complaint on the ground that it fails to state a claim, . . . the 17 court grants leave to amend, and . . . the plaintiff then fails to file an amended complaint, the 18 dismissal counts as a strike.” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). Thus, the 19 dismissal in Younger v. Sumptner is appropriately counted as a strike dismissal against plaintiff. 20 Lastly, the court agrees with the magistrate judge’s finding that plaintiff’s allegations fail 21 to satisfy the imminent danger exception under 28 U.S.C. § 1915(g). (Doc. No. 5 at 2.) In his 22 objections, plaintiff’s statement that officials are involved in a conspiracy to murder him are 23 conclusory (See Doc. No. 7 at 2) and not supported by any alleged facts. See Childs v. Miller, 24 713 F.3d 1262, 1267 (10th Cir. 2013) (ordering appellee “will be barred from proceeding [in 25 forma pauperis] in future civil actions or appeals in federal court unless he is ‘under imminent 26 danger of serious physical injury,’ and he makes ‘specific [and] credible allegations’ to that 27 effect.”)(internal citations omitted). Furthermore, plaintiff’s allegation that he was attacked more wOAOe 4. OU VEY AES VR MUO PIR ee YY MV VI 1 | danger of future injury. (See id.) See Ciarpaglini v. Saini, 352 F.3d 328, 330 (7th Cir. 2003) 2 | (“the ‘threat or prison condition [must be] real and proximate.’ Allegations of past harm do not 3 | suffice; the harm must be imminent or occurring at the time the complaint is filed.”) (internal 4 | citations omitted); Freeman v. Kernan, No. 2:17-cv-2233-TLN-AC, 2019 WL 3080740, at *2 5 | (E.D. Cal. July 15, 2019) (recommending plaintiffs request for an exception under 28 U.S.C. § 6 | 1915(g) be denied where the alleged injuries occurred approximately four months before plaintiff 7 | filed the complaint and therefore could not demonstrate imminent danger), adopted by No. 2:17- 8 | cv-02233-TLN-AC (E.D. Cal. Sept. 3, 2019) (Doc. No. 11). 9 Accordingly, 10 1. The findings and recommendations issued on April 16, 2020 (Doc. No. 5) are adopted 11 in full; 12 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 2) is denied; 13 3. This action is dismissed without prejudice to refiling upon prepayment of the filing 14 fee; and, 15 4. The Clerk of the Court is directed to assign a district judge to this case for the 16 purposes of closure and then to close this case. 17 | IT IS SO ORDERED. me □ | Dated: _ June 26, 2020 Yel A Low 19 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28