(PC) Harris v. Phillips ( 2023 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 MARVIN HARRIS, No. 1:23-cv-01051-SAB (PC) 8 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE 9 v. TO THIS ACITON 10 BYAN D. PHILLIPS, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF MOTION 11 Defendants. FOR LEAVE TO PROCEED IN FORMA PAUPERIS 12 (ECF No. 2) 13 14 Plaintiff is proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983. 15 Plaintiff filed the instant action, along with a motion to proceed in forma pauperis, on June 30, 16 2023, in the United States District Court for the Eastern District of California, Sacramento 17 Division. On July 14, 2023, the action was transferred to this Court. 18 I. 19 DISCUSSION 20 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous 21 prisoner complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 22 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 23 1915(g), a non-merits related screening device which precludes prisoners with three or more 24 “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious 25 physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 26 2007). The statute provides that “[i]n no event shall a prisoner bring a civil action … under this 27 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 28 1 facility, brought an action or appeal in a court of the United States that was dismissed on the 2 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 3 unless the prisoner is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 4 A review of the actions filed by Plaintiff reveals that he is subject to 28 U.S.C. § 1915(g) 5 and is precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the 6 complaint was filed, under imminent danger of serious physical injury. The Court takes judicial 7 notice1 of the following United States District Court cases: (1) Harris v. Hickey, Case No. 1:96- 8 cv-5770 GEB HGB PC (E.D. Cal.) (dismissed on April 7, 1997 as frivolous); (2) Harris v. 9 Hickey, Case No. 1:97-cv-5186-REC-HGB PC (E.D. Cal.) (dismissed on July 28, 1997 as 10 frivolous); (3) Harris v. Coyle, Case No. 1:97-cv-5508-AWI-DLB PC (E.D. Cal.) (dismissed on 11 January 21, 1999 as frivolous, malicious and for failure to state a claim); see also Harris v. 12 Brooks, Case No. 1:2:09-cv-01818-WBS-DAD PC (E.D. Cal. Mar. 22, 2010) (finding plaintiff 13 had, on three or more occasions, brought an action that was dismissed for failure to state a claim 14 which relief may be granted). 15 The issue now becomes whether Plaintiff has met the imminent danger exception, which 16 requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and 17 which turns on the conditions he faced at the time he filed his complaint on June 13, 2023 (with 18 application of the mailbox rule). Andrews, 493 F.3d at 1053-1056. Conditions which posed 19 imminent danger to Plaintiff at some earlier time are immaterial, as are any subsequent 20 conditions. Id. at 1053. While the injury is merely procedural rather than a merits-based review 21 of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 22 Here, the Court finds that Plaintiff’s allegations fail to demonstrate imminent danger of 23 serious physical injury at the time of filing. In the instant complaint, Plaintiff alleges that the 24 Department of Corrections has stolen money from his prison trust account without due process of 25 law and in violation of his equal protection rights. Plaintiff also contends that medical staff at 26 California Substance Abuse Treatment Facility (SATF) have denied him medical supplies and his 27 1 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 634 n.1 (N.D. Cal. 28 1978). 1 | rights under the Americans with Disabilities Act have been violated. Plaintiff has not established 2 | he “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews, 493 F.3d 3 | at 1055 (quoting 28 U.S.C. § 1915(g)). Plaintiff makes no allegation of imminent danger of 4 | serious physical injury at the time he filed his complaint. See Andrews, 493 F.3d at 1051-52 5 | (noting § 1915(g)’s exception for IFP complaints which “make[ ] a plausible allegation that the 6 || prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”). Therefore, 7 | Plaintiff does not establish an exception to the three-strikes rule of § 1915(g), and he is precluded 8 | from proceeding in forma pauperis in this action. 9 Il. 10 CONCLUSION AND RECOMMENDATIONS 11 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 12 | District Judge to this action. 13 Further, it is HEREBY RECOMMENDED that, pursuant to 28 U.S.C. § 1915(g), Plaintiff 14 | not be allowed to proceed in forma pauperis and instead be directed to pay the $402.00 filing fee 15 | in full if he wishes to proceed with this action. 16 These Findings and Recommendations will be submitted to the United States District 17 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen 18 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 19 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 | Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 22 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 23 24 IT IS SO ORDERED. OF. nf ee 95 | Dated: _ July 17, 2023 " UNITED STATES MAGISTRATE JUDGE 27 28