(PC)Quair v. Collier ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SAMMY R. QUAIR, SR., Case No. 1:21-cv-01533-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 COLLIER, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 Before the Court is Plaintiff’s motion to proceed in forma pauperis pursuant to 28 U.S.C. 18 § 1915. (Doc. 2.) Because Plaintiff has accrued three “strikes” under section 1915(g) and fails to 19 show that he is under imminent danger of serious physical injury, the Court recommends that his 20 motion be denied. 21 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 22 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 23 event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 24 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 25 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 26 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 27 of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. DISCUSSION 2 The Court takes judicial notice of three of Plaintiff’s prior actions that were dismissed for 3 failure to state a claim on which relief can be granted1: (1) Quair, Sr. v. Vento, et al., No. 1:14-cv- 4 01616-AWI-BAM (E.D. Cal. March 21, 2017); (2) Quair v. Board of Supervisors, et al., No. 5 1:19-cv-00902-DAD-SKO (E.D. Cal. July 6, 2020); and (3) Quair v. Board of Supervisors, et al., 6 No. 1:19-cv-00993-DAD-BAM (E.D. Cal. Aug. 11, 2020). Each of these cases was dismissed 7 before Plaintiff initiated the current action on October 18, 2021. Plaintiff is therefore precluded 8 from proceeding in forma pauperis unless he was under imminent danger of serious physical 9 injury when he filed his complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 10 2007). 11 Plaintiff alleges officials at Kings County Jail retaliated against him for breaking a 12 sprinkler in his cell, which he did to “wash . . . laundry and . . . shower,” as well as for filing a 13 grievance and a lawsuit. (See Doc. 1 at 4, 6.) Plaintiff alleges the officials made him wear a shirt 14 and boxers that were too large and small, respectively, which led to verbal sexual harassment by 15 other inmates; failed to provide him a fully charged tablet; and verbally abused him. (See id. at 4- 16 6.) Plaintiff’s allegations do not show that he was under imminent danger of serious physical 17 injury at the time he filed suit. 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 These Findings and Recommendations will be submitted to the United States District 25 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 26 service of these Findings and Recommendations, Plaintiff may file written objections with the 27 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 1 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 2 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5 6 Dated: October 21, 2021 _ /s/ Jennifer L. Thurston CHIEF UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27