(PC) Bland v. The People of the State of California ( 2020 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JOSHUA BLAND, Case No. 1:20-cv-00637-NONE-BAM (PC) 9 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 10 v. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 11 THE PEOPLE OF THE STATE OF CALIFORNIA, et al., (ECF No. 2) 12 Defendants. FOURTEEN (14) DAY DEADLINE 13 14 Plaintiff Joshua Bland (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights 15 action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion to proceed 16 in forma pauperis, filed May 5, 2020. (ECF No. 2.) 17 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 18 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 19 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 20 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 21 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 22 physical injury.”1 23 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 24 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 25 1 The Court takes judicial notice of the following United States District Court Cases: (1) Bland v. Cal. Dep’t of Corrs. & Rehab., Case No. 1:18-cv-01357-LJO-EPG (E.D. Cal.) (dismissed May 2, 2019, for failure to state a claim); 26 (2) Bland v. Brown, Case No. 1:18-cv-01358-AWI-JDP (E.D. Cal.) (dismissed July 11, 2019, for failure to state a claim); and (3) Bland v. Clark, Case No. 1:19-cv-00197-DAD-BAM (E.D. Cal.) (dismissed April 17, 2020, for 27 failure to state a claim). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 1053−55 (9th Cir. 2007). Plaintiff raises claims regarding “constitutional impermissible 2 application of statutes,” alleging that the State of California and the Superior Court of California 3 for Fresno County violated Plaintiff’s rights under the Fourteenth Amendment. Plaintiff 4 challenges certain state statutes under which he is convicted, and seeks damages and punitive 5 damages. (ECF No. 1.) However, Plaintiff does not allege that he was under any imminent 6 danger of serious physical injury at the time the complaint was filed. Therefore, Plaintiff has not 7 satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff must 8 pay the $400.00 filing fee if he wishes to litigate this action. 9 Accordingly, it is HEREBY RECOMMENDED that: 10 1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 11 U.S.C. § 1915(g); and 12 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 13 action. 14 These Findings and Recommendations will be submitted to the United States District 15 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 16 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 17 file written objections with the court. The document should be captioned “Objections to 18 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 19 objections within the specified time may result in the waiver of the “right to challenge the 20 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 21 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED. 22 23 Dated: May 8, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28