(PC) Chatman v. Diaz ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY ALONZO CHATMAN, No. 1:20-cv-00918-NONE-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS, AND 14 R. DIAZ, et al., DISMISSING ACTION WITHOUT PREJUDICE 15 Defendants. (Doc Nos. 5, 7) 16 17 Plaintiff Larry Alonzo Chatman is a state prisoner proceeding pro se in this civil rights 18 action under 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On July 15, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending that plaintiff’s motion to proceed in forma pauperis (Doc. No. 5) be denied and 22 this action dismissed without prejudice because plaintiff has accrued more than three “strike” 23 dismissals under 28 U.S.C. § 1915(g). (Doc. No. 7.) The magistrate judge further found that 24 plaintiff’s allegations fail to show that he is in imminent danger of serious physical injury. (Id. at 25 2.) The judge provided plaintiff fourteen (14) days to file objections to the findings and 26 recommendations. (Id. at 3.) 27 Plaintiff filed timely objections on July 30, 2020. (Doc. No. 8.) In his objections, 1 qualifies for the imminent-danger exception under 28 U.S.C. § 1915(g). (See id.) 2 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 3 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 4 objections, the court finds the findings and recommendations to be supported by the record and 5 proper analysis. 6 The magistrate judge correctly found that four of plaintiff’s prior cases were dismissed as 7 frivolous or for failure to state a claim on which relief can be granted. (Doc. No. 7 at 2.) Three 8 of the cases were dismissed when plaintiff failed to file an amended complaint, after the district 9 court had found that plaintiff’s operative complaint failed to state a cognizable claim. Chatman v. 10 Bradford, et al., No. 2:05-cv-01571-FCD-GGH (E.D. Cal. Aug. 24, 2006); Chatman v. Solano 11 County Jail, et al., No. 2:04-cv-02655-MCE-GGH (E.D. Cal Aug. 30, 2006); Chatman v. Dillion, 12 et al., No. 2:19-cv-02171-WBS-AC (E.D. Cal. Jan. 29, 2020). The Ninth Circuit has held “that 13 when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the 14 court grants leave to amend, and (3) the plaintiff then fails to file an amended complaint, the 15 dismissal counts as a strike.” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). 16 Additionally, the Supreme Court recently held that a “dismissal . . . for failure to state a claim 17 counts as a strike, whether or not with prejudice.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 18 1727 (2020). 19 The court also agrees with the magistrate judge’s finding that plaintiff’s allegations fail to 20 satisfy the imminent-danger exception under section 1915(g). (Doc. No. 7 at 2.) In his 21 objections, plaintiff states that he “has contracted a ‘serious life threatening illness ulcerative 22 proctitis,” which “lower[s] one[’s] ‘immune system’” and makes “plaintiff ‘more susceptible’ to . 23 . . COVID 19.’” (Doc. No. 8 at 2.) Plaintiff’s claims do not show that he is in imminent danger 24 of physical injury. Furthermore, the claims are not related to any of the allegations in plaintiff’s 25 complaint, which concern the deprivation of “good conduct credits.” (See Doc. No. 1 at 3); see 26 also Stine v. Fed. Bureau of Prisons, No. 1:13–CV–1883 AWI MJS, 2015 WL 5255377, at *3 27 (E.D. Cal. Sept. 9, 2015) (“[T]he complaint of a three-strikes litigant must reveal a nexus between wOAOe 4. UVM GEO PARE SINAC OPI MOI VV 1 | ‘imminent danger’ exception of section 1915(g).”). Plaintiffs allegations thus fail show that he 2 | was in imminent danger of serious physical injury at the time he filed suit. See Andrews v. 3 | Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) (“the availability of the [imminent-danger] 4 | exception turns on the conditions a prisoner faced at the time the complaint was filed, not at some 5 | earlier or later time”). 6 Accordingly, 7 1. The findings and recommendations issued on July 15, 2020 (Doc. No. 7) are adopted 8 in full; 9 2. Plaintiff's motion to proceed in forma pauperis (Doc. No. 5) is denied; 10 3. This action is dismissed without prejudice to refiling upon prepayment of the filing 11 fee; and, 12 4. The Clerk of the Court is directed to assign a district judge to this case for purposes of 13 closure and to close this case. 14 | IT IS SO ORDERED. si □ Dated: _ August 6, 2020 J aL Al 5 7 a 16 UNITED STATES DISTRICT JUDGE 17 18 19 20 21 22 23 24 25 26 27 28