(PC) Hammler v. The State of California ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, Case No. 1:19-cv-00785-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS DENYING MOTION TO PROCEED IN FORMA 13 v. PAUPERIS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE 14 STATE OF CALIFORNIA, et al., DAYS 15 Defendants. ECF No. 8 16 OBJECTIONS DUE WITHIN 14 DAYS 17 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 18 19 20 Plaintiff Allen Hammler is a state prisoner proceeding without counsel in this civil rights 21 action brought under 42 U.S.C. § 1983. On April 26, 2019, plaintiff filed an application to 22 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 8. 23 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 24 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 25 detained in any facility, brought an action or appeal in a court of the United States that was 26 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 27 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 28 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 1 for failing to state a claim upon which relief maybe granted.1 2 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 3 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). In his complaint, plaintiff contends that he 4 was served meals that were improperly prepared, and that he was assaulted by an officer when 5 plaintiff put his hand through the food port door. See ECF No. 1 at 5-8. Plaintiff does not, 6 however, allege that he is currently at risk of physical harm. 7 Accordingly, plaintiff’s in forma pauperis application should be denied, and he should 8 pay the filing fee in full, since he has accrued three or more strikes and was not under imminent 9 danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). 10 Order 11 The clerk of court is directed to assign this case to a district judge who will review the 12 findings and recommendations. 13 Findings and Recommendations 14 Based on the foregoing, it is hereby recommended that: 15 1. plaintiff’s in forma pauperis application, ECF No. 8, be denied; 16 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 17 of these findings and recommendations; and 18 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 19 these findings and recommendations, all pending motions be terminated and this action 20 be dismissed without prejudice. 21 The undersigned submits the findings and recommendations to a district judge under 28 22 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 23 Court, Eastern District of California. Within fourteen days of the service of the findings and 24 1 The cases include: (1) Hammler v. Director of CDCR, Case No. 1:17-cv-00097-NJV (N.D. Cal.) 25 (dismissed on April 27, 2017 for failure to file an amended complaint following a screening order dismissing complaint for failure to state a claim); (2) Hammler v. Hudson, Case No. 2:16-cv- 26 01153-JAM-EFB (E.D. Cal.) (dismissed on May 17, 2019 for failure to exhaust clear from the 27 face of the complaint and attachments thereto); and (3) Hammler v. Hough, Case No. 3:18-cv- 01319-LAB-BLM (S.D. Cal.) (dismissed on May 24, 2019 for failure to state a claim and as 28 frivolous). 1 | recommendations, plaintiff may file written objections to the findings and recommendations with 2 | the court. That document should be captioned “Objections to Magistrate Judge’s Findings and 3 | Recommendations.” The district judge will review the findings and recommendations under 28 4 1 US.C. § 636(b)(1)(C). 5 6 IT IS SO ORDERED. g □ N prssany — Dated: _ August 13, 2019 8 UNI STATE AGISTRATE JUDGE 9 10 11 | No. 204 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28