(PC) Melger v. Newsom ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS JOSEPH MELGER, Case No. 2:23-cv-00603-JDP (PC) 10 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 11 v. 12 GAVIN NEWSOM, et al., 13 Defendants. 14 15 16 17 18 19 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 20 ECF No. 2. He is, however, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). 21 He has, in other words, filed three cases that have been dismissed for failure to state a claim. 22 Plaintiff was identified as a three-striker in Melger v. Sacramento Sheriff Department, No. 2:21- 23 cv-01611-WBS-AC, at ECF Nos. 5 & 8.1 Plaintiff might still be eligible to proceed in forma 24 pauperis if his complaint made a showing of imminent physical danger. The allegations in his 25 1 In that case, Judge Claire found that plaintiff had filed three cases dismissed for failure 26 to state a claim: (1) Melger v. Wesp, Case No. 2:16-cv-01103-KJN (E.D. Cal.); (2) Melger v. 27 Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and (3) Melger v. Becerra, Case No. 2:18-cv- 03264-WBS-CKD (E.D. Cal.). Here recommendations were adopted by Judge Shubb. ECF No. 28 8. 1 | complaint are inadequate to make this showing. 2 Plaintiff alleges that his rights were violated when, in March 2022, he attempted to set up 3 | atent on private property and was told to leave. ECF No. 1 at 3-4. Some time later, he went to 4 | Placer County Health and Human Services to apply for welfare, but found that he was eligible 5 | only for two hundred dollars a month in rent assistance—not enough to get an apartment. Jd. at 4. 6 | These allegations, taken as true, do not establish that plaintiff is in imminent danger of physical 7 | harm. 8 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge 9 | to this action. 10 Further, it is RECOMMENDED that plaintiff's application to proceed in forma pauperis, 11 | ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any 12 | order adopting these recommendations. 13 These findings and recommendations are submitted to the United States District Judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 | after being served with these findings and recommendations, any party may file written 16 | objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 | objections shall be served and filed within fourteen days after service of the objections. The 19 | parties are advised that failure to file objections within the specified time may waive the right to 20 | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 21 | v. Yist, 951 F.2d 1153 (9th Cir. 1991). 22 73 IT IS SO ORDERED. 24 ( q Sty — Dated: _ June 1, 2023 ow—— 25 JEREMY D. PETERSON 26 UNITED STATES MAGISTRATE JUDGE 27 28