(PC) Harris v. Madden ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, 1:19-cv-01216-DAD-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS 13 v. TO DENY PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA PAUPERIS 14 MADDEN, et al., (Docs. 8-10) 15 Defendants. 14-DAY DEADLINE 16 17 18 I. INTRODUCTION 19 Plaintiff Marvin Harris is a state prisoner proceeding pro se in this civil rights action 20 pursuant to 42 U.S.C. § 1983. (Doc. 1.) On September 25, 2019, and October 7, 2019, Plaintiff 21 filed two applications to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Docs. 8-10.) 22 Plaintiff’s applications should be DENIED because Plaintiff has three strikes under section 1915 23 and fails to show that he is in imminent danger of serious physical injury. 24 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 25 28 U.S.C. § 1915 governs proceedings in forma pauperis. The statute provides, “[i]n no 26 event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 27 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 28 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 1 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 2 of serious physical injury.” 28 U.S.C. § 1915(g). 3 III. DISCUSSION 4 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 5 118, 119 (9th Cir. 1980). Here, the Court takes judicial notice of a number of Plaintiff’s prior 6 lawsuits that were dismissed as frivolous, as malicious, or for failure to state a claim: (1) Ripple 7 and Harris v. Gomez, et al., Case No. 1:96-cv-05284-REC-SMS (E.D. Cal.) (dismissed on April 8 29, 1996, as frivolous); (2) Harris and Ripple v. Hickey, et al., Case No. 1:97-cv-05186-REC- 9 HGB (E.D. Cal.) (dismissed on 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 10 for failure to state a claim); (4) Harris v. Glass, Case No. 2:00-cv- 00937-DFL-DAD (E.D. Cal.) 11 (dismissed on August 17, 2000, for failure to state a claim); (5) Harris v. Edmonds, Case No. 12 1:00-cv-05857-OWW-LJO (E.D. Cal.) (dismissed on November 27, 2000, for failure to state a 13 claim); (6) Harris v. Pliler, et al., Case No. 2:01-cv-01125-WBS-DAD (E.D. Cal.) (dismissed on 14 March 15, 2002, for failure to state a claim); and (7) Harris v. Edmonds, Case No. 1:00-cv- 15 07160-REC-SMS (E.D. Cal.) (dismissed on May 24, 2002, for failure to state a claim). Each of 16 these actions was dismissed prior to the commencement of the current action on September 3, 17 2019. Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded from proceeding 18 in forma pauperis in this action unless, at the time he filed his complaint, he was under imminent 19 danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 20 2007). 21 The Court has reviewed Plaintiff’s complaint in this action, (Doc. 1), and finds that 22 Plaintiff’s allegations do not meet the imminent danger exception. According to Plaintiff, 23 Defendants Madden and Torres subjected him to an unlawful search of his cell and taking of 24 property. Id. at 3-4. Plaintiff’s allegations, if true, do not show that he was in imminent danger of 25 serious physical injury. See Andrews, 493 F.3d at 1055. Thus, Plaintiff is precluded from 26 proceeding in forma pauperis in this action. 27 /// 28 1 IV. CONCLUSION AND RECOMMENDATIONS 2 Based on the foregoing, it is HEREBY RECOMMENDED that: 3 1. Plaintiff’s motions to proceed in forma pauperis, (Docs. 8-10), be DENIED; 4 2. Plaintiff be required to pay, within 14 days of the Court’s order adopting these 5 Findings and Recommendations, the filing fee of $400.00; and 6 3. Plaintiff be informed that failure to timely pay the filing fee will result in dismissal 7 of this action. 8 These Findings and Recommendations will be submitted to the United States District 9 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these Findings and Recommendations, Plaintiff may file written objections 10 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 11 and Recommendations.” Plaintiff’s failure to file objections within the specified time may result 12 in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 13 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 IT IS SO ORDERED. 16 Sheila K. Oberto 17 Dated: October 18, 2019 /s/ . 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28