(PC) Tunstall v. Nappi ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WILLIAM TUNSTALL, JR., No. 2:21-cv-0308-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 ARNO NAPPI, 15 Defendant. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). As 19 discussed below, plaintiff has not demonstrated he is eligible to proceed in forma pauperis. 20 A prisoner may not proceed in forma pauperis: 21 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 22 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of 23 serious physical injury. 24 25 28 U.S.C. § 1915(g). The U.S. Court of Appeals for the Ninth Circuit has previously designated 26 plaintiff a three-strikes litigant. See Tunstall v. Virga, No. 17-15170 (9th Cir. Sept. 13, 2017), 27 ECF No. 29. Indeed, court records reflect that on at least three prior occasions, plaintiff has 28 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 1 state a claim upon which relief may be granted. See (1) Tunstall v. Yentes, No. 07-15660 (9th Cir. 2 July 18, 2007) (dismissing appeal based on finding that it was not taken in good faith, i.e., 3 frivolous1); (2) Tunstall v. Veal, No. 2:06-cv-00727-LKK-EFB (E.D. Cal. Apr. 3, 2009) 4 (dismissing action for failure to state a claim); (3) Tunstall v. Knowles, 2:08-1850-RCC (E.D. Cal. 5 Sept. 15, 2009), ECF Nos. 16 & 17 (dismissing action after plaintiff failed to submit an amended 6 complaint within allotted time following dismissal of complaint for failure to state a claim); (4) 7 Tunstall v. Duffy, No. 2:14-cv-02259-JAM-EFB (E.D. Cal. Feb. 18, 2016) (dismissing action 8 after plaintiff failed to submit an amended complaint within allotted time following dismissal of 9 complaint for failure to state a claim); (5) Tunstall v. California, No. 2:11-cv-02587-KJM-GGH 10 (E.D. Cal. June 19, 2012) (dismissing action after plaintiff failed to submit an amended complaint 11 within allotted time following dismissal of complaint for failure to state a claim); and (6) Tunstall 12 v. Virga, No. 2:13-cv-00699-MCE-EFB (E.D. Cal. Dec. 12, 2014) (dismissing action after 13 plaintiff failed to submit an amended complaint within allotted time following dismissal of 14 complaint for failure to state a claim). 15 The section 1915(g) exception applies if the complaint makes a plausible allegation that 16 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 17 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff 18 complains that the defendant discriminated against him and assaulted him on March 11, 2013. 19 See ECF No. 1 at 1-7, Ex. A. The complaint fails to demonstrate that plaintiff was under an 20 imminent danger of serious physical injury when he filed this action on February 18, 2021. 21 Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied pursuant to 22 § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with this action. 23 Accordingly, it is ORDERED that the Clerk of the Court randomly assign a United States 24 District Judge to this action. 25 ///// 26 1 See Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir. 2013) (dismissed appeals counted as 27 strike where district court certified that appeals were not taken in good faith) (citing Gardner v. Pogue, 558 F.2d 548, 551 (9th Cir. 1977) (appeal not taken in good faith is equivalent to a finding 28 of frivolity)). ] Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma 2 || pauperis, itis RECOMMENDED that: 3 1. Plaintiffs application to proceed in forma pauperis (ECF No. 11) be denied; and 4 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any 5 || order adopting these findings and recommendations and be warned that failure to do so will result 6 || in the dismissal of this action. 7 These findings and recommendations are submitted to the United States District Judge 8 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 9 || after being served with these findings and recommendations, any party may file written 10 || objections with the court and serve a copy on all parties. Such a document should be captioned 11 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 12 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 13 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 14 || Dated: May 12, 2021. 15 tid, PDEA 16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28