(PC) Jones v. CCI-Richards ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GARLAND A. JONES, No. 1:20-cv-00639-NONE-SKO (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DENYING MOTION 13 v. TO PROCEED IN FORMA PAUPERIS, AND 14 RICHARDS, et al., DISMISSING ACTION WITHOUT PREJUDICE 15 Defendants. (Doc. Nos. 7, 12, 16) 16 17 Plaintiff Garland A. Jones is a state prisoner proceeding pro se in this civil rights action 18 brought pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate 19 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On May 29, 2020, the assigned magistrate judge issued findings and recommendations, 21 recommending that plaintiff’s motion to proceed in forma pauperis (Doc. No. 7) be denied, and 22 this action dismissed without prejudice, because plaintiff has three prior “strike” dismissals under 23 28 U.S.C. § 1915(g). (Doc. No. 12.) The magistrate judge further found that the allegations of 24 plaintiff’s complaint fail to show that he is in imminent danger of serious physical injury. (Id. at 25 2.) The magistrate judge provided plaintiff fourteen (14) days to file objections to the pending 26 findings and recommendations. (Id.) 27 Plaintiff filed timely objections on June 15, 2020. (Doc. No. 13.) In his objections, 1 because he appealed from those dismissals. (See id. at 1–2.) Plaintiff also suggests that he 2 qualifies for the imminent-danger exception to the three-strikes rule. (See id. at 2.) Plaintiff also 3 filed a second motion to proceed in forma pauperis on July 15, 2020. (Doc. No. 16.) 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 6 objections, the court finds the pending findings and recommendations to be supported by the 7 record and proper analysis. 8 The magistrate judge correctly found that three of plaintiff’s prior cases were dismissed 9 for failure to state a claim upon which relief can be granted. (Doc. No. 12 at 2.) Plaintiff 10 appealed from two of those dismissal orders: Jones v. Tolson, No. 1:15-cv-01037-JDP (E.D. Cal. 11 Sept. 14, 2015), and Jones v. Mailroom Officials, No. 1:17-cv-00281-LJO-SKO (E.D. Cal. Jan. 9, 12 2019). The Ninth Circuit Court of Appeals dismissed the first appeal for lack of jurisdiction. See 13 Jones v. Tolson, No. 16-15864 (9th Cir. June 13, 2016). The second appeal is still pending. See 14 Jones v. Mailroom Officials, No. 19-15345 (9th Cir.). Court records do not indicate that plaintiff 15 appealed the third dismissal cited by the magistrate judge. See Jones v. Cal. Corrs. Healthcare 16 Servs., No. 2:17-cv-00738-WBS-DB (E.D. Cal.). 17 The Supreme Court has held that “[a] prior dismissal on a statutorily enumerated ground 18 [in 28 U.S.C. § 1915(g)] counts as a strike even if the dismissal is the subject of an appeal.” 19 Coleman v. Tollefson, —U.S.—, 135 S. Ct. 1759, 1763 (2015). Thus, plaintiff’s appeal of the 20 dismissal in Jones v. Tolson, No. 1:15-cv-01037-JDP, is counted as a strike even though his 21 appeal is still pending. Plaintiff, therefore, has accumulated three strikes under § 1915(g), and he 22 “may not file an additional suit in forma pauperis while his appeal of one such dismissal is 23 pending.” Coleman, —U.S.—, 135 S. Ct. at 1765. 24 The magistrate judge also correctly found that the allegations of plaintiff’s complaint fail 25 to satisfy the imminent-danger exception under 28 U.S.C. § 1915(g). (Doc. No. 12 at 2.) In his 26 objections, plaintiff states that 27 a violent action occurred on individuals Jones [Plaintiff] and Mao. It is known that a violent attack on individuals at a 50/50 yard wOASe 4 OVE MEARE SINR MVOC LO POC Oe ier □□ VI 1 institution is probable — Also ve been placed on a yard where Mao 5 was stabbed up with a predatory chrono. 3 | (Doc. No. 13 at 2.) Plaintiff provides no further details or facts about the “violent action” against 4 | him, and his claim that a “violent attack” against “individuals” is “probable” is speculative and 5 | lacks factual support. Plaintiff thus has failed to show that he was in imminent danger of serious 6 | physical injury at the time that his complaint was filed. 7 Accordingly, 8 1. The findings and recommendations issued on May 29, 2020 (Doc. No. 12) are adopted 9 in full; 10 2. Plaintiff's motions to proceed in forma pauperis (Doc. Nos. 7, 16) are denied; 11 3. This action is dismissed without prejudice to refiling upon prepayment of the filing 12 fee; and, 13 4. The Clerk of the Court is directed to assign a district judge to this case for purposes of 14 closure and to close this case. 15 | ITIS SO ORDERED. ~ ‘ae | Dated: _ August 26, 2020 Yi AL nye 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28