(PC) George v. Zuniga ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD EARL GEORGE, No. 2:19-cv-2403 KJM AC P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 ZUNIGA, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. 18 I. Three Strikes Analysis 19 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF Nos. 20 2, 7. The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 21 authorize the commencement and prosecution of any suit without prepayment of fees by a person 22 who submits an affidavit indicating that the person is unable to pay such fees. However, 23 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 24 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 25 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 26 unless the prisoner is under imminent danger of serious physical injury. 27 28 28 U.S.C. § 1915(g). 1 The plain language of the statute makes clear that a prisoner is precluded from bringing a 2 civil action or an appeal in forma pauperis if the prisoner has brought three frivolous actions 3 and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 169 F.3d 1176, 4 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in forma pauperis] 5 status only when, after careful evaluation of the order dismissing an action, and other relevant 6 information, the district court determines that the action was dismissed because it was frivolous, 7 malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 8 “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds that [the 9 claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a 10 complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal 11 as denial of the prisoner’s application to file the action without prepayment of the full filing fee.” 12 O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal 13 also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the 14 ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then 15 fails to file an amended complaint” regardless of whether the case was dismissed with or without 16 prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 17 Inspection of other cases filed by plaintiff in this court has led to the identification of at 18 least four cases brought by plaintiff that qualify as strikes. The court takes judicial notice of the 19 following lawsuits filed by plaintiff:1 20 1. George v. Chapa, E.D. Cal. No. 1:12-cv-1788 GSA (complaint dismissed with leave to 21 amend for failure to state a claim, case dismissed on March 31, 2014, for failure to file 22 an amended complaint); 23 2. George v. Stebbino, E.D. Cal. No. 1:13-cv-0052 BAM (complaint dismissed with 24 leave to amend for failure to state a claim, case dismissed on March 25, 2014, for 25 1 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 failure to file an amended complaint); 2 3. George v. Lopez, E.D. Cal. No. 1:13-cv-0055 DLB (complaint dismissed with leave to 3 amend for failure to state a claim, case dismissed on June 18, 2014, for failure to file 4 an amended complaint); 5 4. George v. Stebbino, E.D. Cal. No. 1:16-cv-1397 SAB (complaint dismissed without 6 leave to amend for failure to state a claim on May 11, 2017). 7 All of the preceding cases were dismissed well in advance of the November 26, 2019 8 filing of the instant action and none of the strikes have been overturned. Therefore, this court 9 finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent 10 danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must 11 have alleged facts that demonstrate that he was “under imminent danger of serious physical 12 injury” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 13 2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for 14 purposes of the ‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie, 15 239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 16 1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 17 885 (5th Cir. 1998). 18 The complaint alleges that on June 12, 2019, defendants denied him breakfast and lunch. 19 ECF No. 1 at 3-4. These allegations do not demonstrate an imminent risk of serious physical 20 injury at the time of filing, and the undersigned will therefore recommend that plaintiff be 21 required to pay the filing fee in full or have the complaint dismissed. 22 II. Motion for Extension of Time 23 Plaintiff has filed a motion for an extension of time to file his notice regarding magistrate 24 judge jurisdiction along with the required notice. ECF Nos. 8, 9. Good cause appearing, the 25 motion will be granted and the notice regarding magistrate judge jurisdiction is deemed timely. 26 III. Plain Language Summary of this Order for a Pro Se Litigant 27 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 28 status unless you show the court that you were in imminent danger of serious physical injury at 1 | the time you filed the complaint. You have not shown that you were in imminent danger of 2 || serious physical injury and so it is being recommended that your motion to proceed in forma 3 || pauperis be denied and you be required to pay the whole filing fee at one time. 4 Accordingly, IT IS HEREBY ORDERED that plaintiffs motion for an extension of time, 5 || ECF No. 8, is granted and plaintiff’s notice regarding magistrate judge jurisdiction is deemed 6 || timely. 7 IT IS FURTHER RECOMMENDED that plaintiffs motions to proceed in forma pauperis 8 | (ECF Nos. 2, 7) be denied and plaintiff be ordered to pay the entire $400.00 in required fees 9 | within thirty days or face dismissal of the case. 10 These findings and recommendations are submitted to the United States District Judge 11 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 12 | after being served with these findings and recommendations, plaintiff may file written objections 13 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 14 | and Recommendations.” Plaintiff is advised that failure to file objections within the specified 15 || time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 16 | (9th Cir. 1991). 17 | DATED: January 15, 2020 ~ 18 Hhthren— Char ALLISON CLAIRE 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28