(PC)Washington v. California Department of Corrections and Rehabilitation ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM NATHANIEL Case No. 1:19-cv-01556-JLT (PC) WASHINGTON, 12 FINDINGS AND RECOMMENDATIONS Plaintiff, TO DENY PLAINTIFF’S MOTION TO 13 PROCEED IN FORMA PAUPERIS v. 14 (Doc. 2) CALIFORNIA DEPARTMENT OF 15 CORRECTIONS AND 14-DAY DEADLINE REHABILITATION, et al., 16 Clerk of Court to Assign a District Judge Defendants. 17 18 Plaintiff seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2.) 19 Because Plaintiff has three “strikes” under section 1915(g) and fails to show that he is in 20 imminent danger of serious physical injury, the Court recommends that Plaintiff’s motion be 21 DENIED. 22 I. Three-Strikes Provision of 28 U.S.C. § 1915 23 28 U.S.C. § 1915 governs proceedings in forma pauperis. 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 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 1 II. DISCUSSION 2 The Court takes judicial notice of three of Plaintiff’s prior lawsuits that were dismissed on 3 the grounds that they were frivolous, malicious, or failed to state a claim: (1) Washington v. City 4 of Los Angeles, et al., Case No. 2:14-cv-09375-VAP-PJW (C.D. Cal.) (dismissed on August 6, 5 2015, as frivolous, malicious, or for failure to state a claim); (2) Washington v. Diamond, Case 6 No. 2:18-cv-05883-VAP-PJW (C.D. Cal.) (dismissed on July 18, 2018, for failure to state a 7 claim); and (3) Washington v. Lewis, Case No. 2:16-cv-03041-JAM-EFB (E.D. Cal.) (dismissed 8 on October 24, 2018, for failure to state a claim)1. Each of these cases was dismissed before 9 Plaintiff initaited the current action on November 1, 2019. Therefore, Plaintiff is precluded from 10 proceeding in forma pauperis in this action unless, at the time he filed his complaint, he was 11 under imminent danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 12 1052-53 (9th Cir. 2007). 13 The Court has reviewed Plaintiff’s complaint, (Doc. 1), and finds that Plaintiff’s 14 allegations do not meet the imminent danger exception. According to Plaintiff, Defendants are 15 liable for Plaintiff contracting Valley Fever because they did not follow prison protocols with 16 respect to administering the Valley Fever/cocci skin test and by transferring Plaintiff to a facility 17 with high incidence of Valley Fever. (Doc. 1 at 2-3.) Plaintiff’s allegations, if true, do not show 18 that he is in imminent danger of serious physical injury. See Andrews, 493 F.3d at 1055. Thus, 19 Plaintiff is precluded from proceeding in forma pauperis in this action. 20 CONCLUSION AND RECOMMENDATIONS 21 Based on the foregoing, the Court RECOMMENDS that: 22 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 2), be DENIED; and, 23 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 24 filing fee. 25 The Clerk of Court is DIRECTED to randomly assign a United States District Judge. 26 These Findings and Recommendations will be submitted to the United States District 27 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of 1 the date of service of these Findings and Recommendations, Plaintiff may file written objections 2 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 3 and Recommendations.” Plaintiff’s failure to file objections within the specified time may result 4 in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 5 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 IT IS SO ORDERED. 7 8 Dated: November 7, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27