(PC) Harris v. C. ( 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-01684-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS 14 THERESA C., et al., (Doc. 3) 15 Defendants. 14-DAY DEADLINE Clerk of the Court to Assign a District Judge 16 17 18 Plaintiff Marvin Harris, a state prisoner, has filed a motion to proceed in forma pauperis 19 pursuant to 28 U.S.C. § 1915. (Doc. 3.) Because Plaintiff has accrued more than three “strikes” 20 under section 1915 and fails to show that he is under imminent danger of serious physical injury, 21 the Court recommends that his motion be denied. 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 that “[i]n 24 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or 25 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 26 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 27 fails 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 seven of Plaintiff’s prior lawsuits that were dismissed as 3 frivolous, as malicious, or for failure to state a claim1: (1) Ripple and Harris v. Gomez, et al., 4 Case No. 1:96-cv-05284-REC-SMS (E.D. Cal.) (dismissed on April 29, 1996, as frivolous); (2) 5 Harris and Ripple v. Hickey, et al., Case No. 1:97-cv-05186-REC-HGB (E.D. Cal.) (dismissed on 6 July 28, 1997, as frivolous); (3) Harris v. Coyle, Case No. 1:97-cv-05508-AWI-DLB (E.D. Cal.) (dismissed on January 21, 1999, as frivolous and malicious and for failure to state a claim); (4) 7 Harris v. Glass, Case No. 2:00-cv-00937-DFL-DAD (E.D. Cal.) (dismissed on August 17, 2000, 8 for failure to state a claim); (5) Harris v. Edmonds, Case No. 1:00-cv-05857-OWW-LJO (E.D. 9 Cal.) (dismissed on November 27, 2000, for failure to state a claim); (6) Harris v. Pliler, et al., 10 Case No. 2:01-cv-01125-WBS-DAD (E.D. Cal.) (dismissed on March 15, 2002, for failure to 11 state a claim); and (7) Harris v. Edmonds, Case No. 1:00-cv-07160-REC-SMS (E.D. Cal.) 12 (dismissed on May 24, 2002, for failure to state a claim). Each of these actions was dismissed 13 prior to the commencement of the current action on November 23, 2021. Plaintiff is therefore 14 subject to the section 1915(g) bar, and he is precluded from proceeding in forma pauperis in this 15 action unless, at the time he filed his complaint, he was under imminent danger of serious 16 physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 17 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 18 do not meet the imminent danger exception. Plaintiff makes a number of unrelated allegations 19 regarding, for example, his removal from a canteen, the fact that he has not received a stimulus 20 check, his vision impairment, and his limited access to the law library (See Doc. 1 at 4, 7-8, 16- 21 17.) Plaintiff also appears to raise claims on behalf of other inmates. (See id. at 9, 16.) Plaintiff 22 does not allege nor suggest that he is under imminent danger of serious physical injury. Plaintiff 23 is therefore precluded from proceeding in forma pauperis in this action. 24 III. ORDER AND RECOMMENDATIONS 25 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a 26 district judge to this action and RECOMMENDS that: 27 1 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 3) be DENIED; and 2 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 3 filing fee. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 6 service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 7 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 8 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 9 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 10 11 IT IS SO ORDERED. 12 13 Dated: December 14, 2021 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27