(PC) Melger v. Harris ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS JOSEPH MELGER, Case No. 2:23-cv-01062-JDP (PC) 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 KAMALA HARRIS, et al., 15 Defendants. 16 17 18 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 19 ECF No. 2. However, plaintiff is a “Three-Striker” within the meaning of Title 28 U.S.C. 20 § 1915(g). 21 The court takes judicial notice of the following cases constituting strikes: Melger v. 22 Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.) (dismissing without leave to amend for 23 failure to state a claim); Melger v. U.S. Dep’t of the Treasury, 1:21-cv-01183-JLT-SAB (E.D. 24 Cal.) (dismissing for failure to state a claim, failure to comply with court orders, and failure to 25 prosecute); and Melger v. Hopper, 2:17-cv-00224-JAM-DMC (E.D. Cal.) (dismissing for failure 26 to state a claim).1 27 1 In Melger v. Sacramento Sheriff Dep’t, No. 2:21-cv-01611-WBS-AC, Judge Claire 28 issued findings and recommendations denying plaintiff’s in forma pauperis application because 1 Despite being a “three-striker,” a plaintiff may be afforded an opportunity to proceed in 2 forma pauperis under section 1915(g) if he alleges that he was in imminent danger at the time he 3 filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 4 (9th Cir. 2007). 5 Here, the complaint does not allege that plaintiff faced an imminent danger of serious 6 physical injury at the time he filed the complaint. ECF No. 1 at 3-4 (alleging that he was denied 7 the right to “hold a home” in Place County). Plaintiff’s application for leave to proceed in forma 8 pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must submit the appropriate 9 filing fee in order to proceed with this action. 10 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge 11 to this action. 12 Further, it is RECOMMENDED that plaintiff’s application to proceed in forma pauperis, 13 ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any 14 order adopting these recommendations. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 17 after being served with these findings and recommendations, any party may file written 18 objections with the court and serve a copy on all parties. Such a document should be captioned 19 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 20 objections shall be served and filed within fourteen days after service of the objections. The 21 parties are advised that failure to file objections within the specified time may waive the right to 22 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 23 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 26 he is a Three Striker. The cases Judge Claire relied upon were: Melger v. Wesp, Case No. 2:16- 27 cv-01103-KJN (E.D. Cal.); Melger v. Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and Melger v. Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.). Judge Shubb adopted those 28 recommendations in full and denied plaintiff’s application to proceed in forma pauperis. 1 | 1718 SO ORDERED. 3 ( — Dated: __June 12, 2023 ssn (aioe 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28