(PC) Neale v. Sherman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSEPH NEALE, JR., Case No. 1:20-cv-01079-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 SHERMAN, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 15 Defendants. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 16 (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff Joseph Neale, Jr. (“Plaintiff”) is a state prisoner proceeding pro se in this civil 20 rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 4, 2020, 21 together with a motion to proceed in forma pauperis. (ECF Nos. 1, 2.) 22 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 23 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 24 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 25 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 26 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 27 physical injury.”1 28 1 The Court takes judicial notice of the following United States District Court Cases: (1) Neale v. Horel, Case No. 1 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 2 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 3 1053−55 (9th Cir. 2007). In his complaint, Plaintiff alleges that he has been denied the ability to 4 retire so he can pursue an educational program. (ECF No. 1.) Plaintiff alleges that he was 5 enrolled in a voluntary college program in 2016, but after 16 months was abruptly withdrawn 6 from school and compelled to wipe tables in the dining hall from 0400 to 1000 hours. Plaintiff 7 also states, however, that he was compelled to withdraw because his own limited and finite 8 energies did not allow him to concentrate and participate in both work and school. Plaintiff 9 alleges that he is 70 years old and believes that pursuing his education can prevent him from 10 being affected by Alzheimer’s Disease. Plaintiff requests that he be allowed to remain in school 11 and not be forced to do menial labor that saps his limited energy. (Id.) 12 Based on Plaintiff’s allegations, it is unclear whether he voluntarily dropped out of his 13 education program due to his limited energy or whether he was forcibly withdrawn from the 14 program against his wishes. It is also unclear whether the institution is requiring him to remain in 15 his prison job such that he is unable to pursue his educational program. Nevertheless, the Court 16 does not find that Plaintiff’s continuing in a position where he is required to wipe tables in the 17 dining hall, a position that Plaintiff describes only as “menial,” is one that will lead to imminent 18 danger of serious physical injury to Plaintiff. Therefore, Plaintiff has failed to allege that he was 19 in any imminent danger of serious physical injury at the time the complaint was filed. Plaintiff 20 has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff 21 must pay the $400.00 filing fee if he wishes to litigate this action. 22 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 23 District Judge to this action. 24 /// 25 /// 26 3:08-cv-00755-MHP (N.D. Cal.) (dismissed October 8, 2009 for failure to state a claim); (2) Neale v. Sherman, Case No. 1:18-cv-00296-LJO-BAM (E.D. Cal.) (dismissed June 22, 2018 for failure to state a claim); and (3) Neale v. 27 Sherman, Case No. 1:18-cv-00342-DAD-BAM (E.D. Cal.) (dismissed March 23, 2020 for failure to state a claim). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Further, it is HEREBY RECOMMENDED that: 2 1. The motion to proceed in forma pauperis, (ECF No. 2), be DENIED, pursuant to 28 3 U.S.C. § 1915(g); and 4 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 5 action. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 9 file written objections with the court. The document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 11 objections within the specified time may result in the waiver of the “right to challenge the 12 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: August 6, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28