(PC) Samuel Archuleta v. Kern Valley State Prison ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMUEL ARCHULETA, Case No. 1:20-cv-01033-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE 14 KERN VALLEY STATE PRISON, (Doc. 2) 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. 2.) 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. 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 the following three cases that were dismissed for failure 3 to state a claim on which relief can be granted:1 (1) Archuleta v. Del Campo, et al., No. 2:18-cv- 4 00872-WBS-KJN (E.D. Cal. July 3, 2018); (2) Archuleta v. Smith, et al., No. 2:18-cv-00643- 5 TLN-AC (E.D. Cal. Aug. 29, 2018); (3) Archuleta v. Founlong, et al., No. 1:18-cv-00693-LJO- 6 GSA (E.D. Cal. March 8, 2019). These cases were dismissed before Plaintiff initiated the current 7 action on July 27, 2020. Plaintiff is therefore precluded from proceeding in forma pauperis in this 8 action unless, at the time he filed his complaint, he was under imminent danger of serious 9 physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 10 In his complaint, Plaintiff states that he is at high risk of contracting COVID-19 due to his 11 age. (Doc. 1 at 3.) Plaintiff requests that he be placed in quarantine until he is transferred from 12 Kern Valley State Prison. (Id.) Plaintiff’s allegations do not show that he was in imminent danger 13 of serious physical injury at the time he filed his complaint. 14 III. CONCLUSION AND RECOMMENDATIONS 15 Based on the foregoing, the Court RECOMMENDS that: 16 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 17 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 18 filing fee. 19 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 22 of the date of service of these Findings and Recommendations, Plaintiff may file written 23 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 24 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 25 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 26 Two of the cases, Archuleta v. Del Campo, et al. and Archuleta v. Smith, et al., were dismissed without prejudice when Plaintiff failed to file an amended complaint after the court found that he had failed to state a cognizable claim. 27 When a “court dismisses a complaint on the ground that it fails to state a claim, … the court grants leave to amend, and … the plaintiff then fails to file an amended complaint, the dismissal counts as a strike.” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). Furthermore, “[a] dismissal … for failure to state a claim counts as a strike, whether 1 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 IT IS SO ORDERED. 4 5 Dated: July 30, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27