(PC) Harris v. Theresa ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, Case No. 1:21-cv-01665-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 THERESA C., et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT PLAINTIFF BE 15 Defendants. REQUIRED TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION 16 (ECF No. 1) 17 FOURTEEN (14) DAY DEADLINE 18 19 I. Introduction 20 Plaintiff Marvin Harris (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 21 action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on November 17, 2021. (ECF 22 No. 1.) Plaintiff has not filed an application to proceed in forma pauperis or paid the $402.00 23 filing fee. 24 II. Prison Litigation Reform Act 25 The Prison Litigation Reform Act of 1995 (“PLRA”) was enacted “to curb frivolous 26 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099–1100 (9th Cir. 27 2011). Pursuant to the PLRA, the in forma pauperis statute was amended to include section 28 1915(g), a non-merits screening device which precludes prisoners with three or more “strikes” 1 from proceeding in forma pauperis unless they are under imminent danger of serious physical 2 injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The 3 statute provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the 4 prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 5 an action or appeal in a court of the United States that was dismissed on the grounds that it is 6 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner 7 is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 8 III. Discussion 9 As noted above, Plaintiff has neither paid the filing fee for this action nor requested leave 10 to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. A review of court records reveals 11 that Plaintiff is subject to 28 U.S.C. § 1915(g).1 12 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 13 the imminent danger exception to section 1915(g).2 Andrews, 493 F.3d at 1053−55. Though the 14 complaint is thirty pages in length, Plaintiff’s allegations can be summarized as raising claims 15 related to inadequate access to the law library and inadequate access to ADA workers, resulting in 16 denial of Plaintiff’s access to the courts. Plaintiff also alleges that he is being discriminated 17 against on the basis of his race and disability in the assignment of prison jobs, and that he did not 18 receive a COVID-19 stimulus check. Although Plaintiff includes language regarding the legal 19 20 1 The Court takes judicial notice of the following United States District Court cases: (1) Ripple v. Gomez, Case No. 1:96-cv-05284-REC-SMS (E.D. Cal.) (dismissed on April 29, 1996 as frivolous); (2) Harris v. Rehnquist, 21 Case No. 1:96-cv-01304-UNA (D.D.C.) (dismissed on June 11, 1996 for failure to state a claim); (3) Harris v. Higgins, Case No. 1:96-cv-01420-UNA (D.D.C.) (dismissed on June 19, 1996 for failure to state a claim); (4) Harris 22 v. Hickey, Case No. 1:96-cv-05770-GEB-HGB (E.D. Cal.) (dismissed on April 7, 1997 as frivolous); (5) Harris v. Hickey, Case No. 1:97-cv-05186-REC-HBG (E.D. Cal.) (dismissed on July 28, 1997 as frivolous); (6) Harris v. 23 Coyle, Case No. 1:97-cv-05508-AWI-DLB (E.D. Cal.) (dismissed on January 21, 1999 as frivolous, as malicious, and for failure to state a claim); (7) Harris v. Glass, Case No. 2:00-cv-00937-DFL-DAD (E.D. Cal.) (dismissed on 24 August 17, 2000 for failure to state a claim); (8) Harris v. Edmonds, Case No. 1:00-cv-05857-OWW-LJO (E.D. Cal.) (dismissed on November 27, 2000 for failure to state a claim); (9) Harris v. Pliler, Case No. 2:01-cv-01125-WBS- 25 DAD (E.D. Cal.) (dismissed on March 15, 2002 for failure to state a claim); (10) Harris v. Edmonds, Case No. 1:00- cv-07160-REC-SMS (E.D. Cal.) (dismissed on May 24, 2002 for failure to state a claim); (11) Harris v. Virga, Case No. 2:13-cv-00932-GEB-AC (E.D. Cal.) (dismissed on July 8, 2013 as frivolous); (12) Harris v. Harris, Case No. 26 2:14-cv-00977-KJM-KJN (E.D. Cal.) (dismissed on July 31, 2014 as frivolous and for failure to state a claim); and (13) Harris v. Campell, Case No. 1:18-cv-01659-DAD-JLT (E.D. Cal.) (dismissed on April 30, 2020 for failure to 27 state a claim and failure to obey a court order). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 standards for filing of a claim against a defendant who is deliberately indifferent to a substantial 2 risk of serious harm to an inmate, Plaintiff does not actually allege that any defendant was 3 deliberately indifferent or that Plaintiff faces any risk of harm. (See ECF No. 1, pp. 23.) 4 Accordingly, Plaintiff has failed to allege that he was in any imminent danger of serious 5 physical injury at the time the complaint was filed. Plaintiff has not satisfied the exception from 6 the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff should be required to pay the 7 $402.00 filing fee if he wishes to litigate this action. 8 IV. Order and Recommendation 9 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 10 District Judge to this action. 11 Further, it is HEREBY RECOMMENDED that Plaintiff be ordered to pay the $402.00 12 initial filing fee in full to proceed with this action. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 15 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 16 file written objections with the court. The document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 18 objections within the specified time may result in the waiver of the “right to challenge the 19 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 20 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: November 22, 2021 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28