(PC) Roberts v. Senior Accounting ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID ROBERTS, Case No. 1:21-cv-00700-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE 14 SENIOR ACCOUNTING, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. (Doc. 2.) Because Plaintiff has more than three “strikes” under section 1915(g) 20 and fails to show that he is in imminent danger of serious physical injury, the Court recommends 21 that his application be denied and this action be dismissed. 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 four of Plaintiff’s prior lawsuits that were dismissed 3 because they were frivolous or failed to state a claim on which relief can be granted:1 (1) Roberts 4 v. Riverside County Superior Courts, No. 5:19-cv-00446-VBF-RAO (C.D. Cal. April 15, 2019); 5 (2) Roberts v. KVSP Investigation Services Unit, No. 1:19-cv-01055-AWI-SAB (E.D. Cal. Nov. 6 25, 2019); (3) Roberts v. Huckleberry, et al., No. 1:18-cv-01237-DAD-SAB (E.D. Cal. March 10, 7 2020); (4) Roberts v. CDCR Trust Office, No. 5:20-cv-00977-VBF-RAO (C.D. Cal. June 17, 8 2020). These cases were dismissed before Plaintiff initiated the current action on April 27, 2021. 9 Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless, at the 10 time he filed his complaint, he was under imminent danger of serious physical injury. See 11 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 12 Plaintiff alleges that “accounting staff” at Wasco State Prison-Reception Center have 13 stolen money sent to him by family members. (Doc. 1 at 3.) He states that his brother mailed him 14 a money order on April 6 but that he has still not received it.2 (Id.) Based on this, Plaintiff 15 contends that Defendants Gonzales and Villagomez have stolen the money order and others sent 16 to him by his brother and son. (Id.) Plaintiff’s allegations do not show that he is under imminent 17 danger of physical injury. 18 III. CONCLUSION, RECOMMENDATIONS, AND ORDER 19 Based on the foregoing, the Court RECOMMENDS that: 20 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 21 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 22 filing fee. 23 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 24 /// 25 /// 26 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 27 2 Plaintiff’s complaint is dated April 21, 2021. (Doc. 1 at 6.) Given that Plaintiff filed this lawsuit approximately two weeks after the subject incident, it is clear on the face of the complaint that he failed to exhaust administrative 1 These Findings and Recommendations will be submitted to the United States District 2 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 3 service of these Findings and Recommendations, Plaintiff may file written objections with the 4 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 5 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 6 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 7 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 IT IS SO ORDERED. 9 Sheila K. Oberto 10 Dated: April 29, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27