(PC) Bland v. Pedersen ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA BLAND, Case No. 1:20-cv-00793-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO REVOKE PLAINTIFF’S IN FORMA 13 v. PAUPERIS STATUS 14 J. PEDERSEN, et al., 14-DAY DEADLINE 15 Defendants. Clerk of the Court to Assign a District Judge 16 17 Plaintiff Joshua Bland, a state prisoner, initiated this action on June 8, 2020. (Doc. 1.) On 18 June 10, 2020, the Court granted Plaintiff’s application to proceed in forma pauperis (IFP) 19 pursuant to 28 U.S.C. § 1915. (Doc. 4.) Because Plaintiff accrued three “strikes” under section 20 1915(g) before initiating this action and fails to show that he was in imminent danger of serious 21 physical injury at the time he filed suit, the Court recommends that his IFP status be revoked. 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 three of Plaintiff’s prior lawsuits that were dismissed for 3 failure to state a claim on which relief can be granted:1 (1) Bland v. Cal. Dept. of Corrections & 4 Rehabilitation, et al., No. 1:18-cv-01357-LJO-EPG (E.D. Cal. May 2, 2019); (2) Bland v. Brown, 5 et al., No. 1:18-cv-01358-AWI-JDP (E.D. Cal. July 11, 2019); (3) Bland v. Clark, et al., No. 6 1:19-cv-00197-DAD-BAM (E.D. Cal. April 17, 2020). These cases were dismissed before 7 Plaintiff initiated the current action on June 8, 2020. Plaintiff is therefore precluded from 8 proceeding in forma pauperis in this action unless, at the time he filed his complaint, he was 9 under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 10 1052-53 (9th Cir. 2007). 11 The first two claims in Plaintiff’s complaint concern the alleged deprivation of Plaintiff’s 12 property without due process in July 2018. (See Doc. 1 at 3, 4.) The third claim concerns alleged 13 threats by two unknown correctional officers in April 2020.2 (See id. at 5.) Plaintiff’s allegations 14 do not show that he was under imminent danger of serious physical injury at the time he filed his 15 complaint. 16 III. CONCLUSION AND RECOMMENDATIONS 17 Based on the foregoing, the Court DIRECTS the Clerk of the Court to assign a district 18 judge to this action and RECOMMENDS that: 19 1. Plaintiff’s in forma pauperis status be REVOKED; 20 2. The court order granting Plaintiff’s motion to proceed in forma pauperis and directing 21 the director of the California Department of Corrections and Rehabilitation or his 22 designee to collect payments for the filing fee from Plaintiff’s inmate trust account 23 (Doc. 4) be VACATED; and, 24 3. Plaintiff be required to pay the $400 filing fee in full within 30 days to proceed in this 25 action. 26 /// 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 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 3 of the date of service of these Findings and Recommendations, Plaintiff may file written 4 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 5 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 6 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 7 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 IT IS SO ORDERED. 9 Sheila K. Oberto 10 Dated: August 5, 2020 /s/ . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27