(PC) Bland v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA D. BLAND, Case No. 1:20-cv-00895-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION 14 R. DIAZ, et al., (Doc. 5) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Plaintiff has filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 (Doc. 5.) Because Plaintiff has three “strikes” under section 1915(g) and fails to show that he is in 20 imminent danger of serious physical injury, the Court recommends that his application be denied 21 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 lawsuits that were dismissed because 3 they were frivolous, malicious, or failed to state a claim on which relief can be granted:1 (1) 4 Bland v. Cal. Dept. of Corrections & Rehabilitation, et al., No. 1:18-cv-01357-LJO-EPG (E.D. 5 Cal.) (dismissed on May 2, 2019, for failure to state a claim); (2) Bland v. Brown, et al., No. 1:18- 6 cv-01358-AWI-JDP (E.D. Cal) (dismissed on July 11, 2019, for failure to state a claim); (3) 7 Bland v. Clark, et al., No. 1:19-cv-00197-DAD-BAM (E.D. Cal) (dismissed on April 17, 2020, 8 for failure to state a claim); and (4) Bland v. District Attorney’s Office of the County of Lassen, et 9 al., No. 1:20-cv-00296-DAD-JDP (E.D. Cal) (dismissed on July 1, 2020, as frivolous and 10 malicious and for failure to state a claim). Because Plaintiff has accrued more than three strikes, 11 he is 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 alleges that, on June 1, 2020, a correctional sergeant approached his “holding 15 cage” and “got … in [his] face yelling profanity, spitting [and] sputtering—he wore no face mask 16 … threatening [his] safety.” (Doc. 1 at 3.) Plaintiff states that he has asthma. (Id.) Plaintiff’s 17 allegations regarding this past event fail to show that, at the time he filed his complaint, he was 18 under imminent future danger of serious physical injury.2 19 III. CONCLUSION AND RECOMMENDATIONS 20 Based on the foregoing, the Court DIRECTS the Clerk of the Court to assign a district 21 judge to this action and RECOMMENDS that: 22 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 5) be DENIED; and, 23 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 24 filing fee. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 27 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 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 Sheila K. Oberto 8 Dated: July 23, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27