(PC) Harris v. Fiches ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARVIN HARRIS, Case No.: 1:22-cv-00715 BAK (SKO) (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS 14 FICHES, et al., (Doc. 2) 15 Defendant. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Marvin Harris, a state prisoner, is proceeding pro se in this civil rights action 19 brought pursuant to 42 U.S.C. § 1983. Plaintiff filed an application to proceed in forma pauperis 20 on June 14, 2022. (Doc. 2.) 21 Because Plaintiff has accrued more than three “strikes” under section 28 U.S.C. § 1915 22 and fails to show that he is under imminent danger of serious physical injury, the Court will 23 recommend that his motion be denied. 24 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 25 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides that “[i]n 26 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or 27 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 1 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 2 danger of serious physical injury.” 28 U.S.C. § 1915(g). 3 II. DISCUSSION 4 The Court takes judicial notice of ten of Plaintiff’s prior lawsuits that were dismissed as 5 frivolous, as malicious, or for failure to state a claim1: (1) Ripple and Harris v. Gomez, et al., 6 Case No. 1:96-cv-05284-REC-SMS (E.D. Cal.) (dismissed on April 29, 1996, as frivolous); (2) 7 Harris and Ripple v. Hickey, et al., Case No. 1:97-cv-05186-REC-HGB (E.D. Cal.) (dismissed on 8 July 28, 1997, as frivolous); (3) Harris v. Coyle, Case No. 1:97-cv-05508-AWI-DLB (E.D. Cal.) 9 (dismissed on January 21, 1999, as frivolous and malicious and for failure to state a claim); (4) 10 Harris v. Glass, Case No. 2:00-cv-00937-DFL-DAD (E.D. Cal.) (dismissed on August 17, 2000, 11 for failure to state a claim); (5) Harris v. Edmonds, Case No. 1:00-cv-05857-OWW-LJO (E.D. 12 Cal.) (dismissed on November 27, 2000, for failure to state a claim); (6) Harris v. Pliler, et al., 13 Case No. 2:01-cv-01125-WBS-DAD (E.D. Cal.) (dismissed on March 15, 2002, for failure to 14 state a claim); (7) Harris v. Edmonds, Case No. 1:00-cv-07160-REC-SMS (E.D. Cal.) (dismissed 15 on May 24, 2002, for failure to state a claim); (8) Harris v. Virga, Case No. 2:13-cv-00932 GEB- 16 AC (E.D. Cal.) (dismissed on July 8, 2013, as frivolous); (9) Harris v. Harris, et al., Case No. 17 2:14-cv-00977-KJM-KJN (E.D. Cal.) (dismissed on July 31, 2014, as frivolous and for failure to 18 state a claim); and (10) Harris v. Campell, et al., Case No. 1:18-cv-01659-DAD-JLT (E.D. Cal.) 19 (dismissed on April 30, 2020, for failure to state a claim and failure to obey court orders). Each of 20 these actions was dismissed prior to the commencement of the current action on June 14, 2022. 21 Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded from proceeding in 22 forma pauperis in this action unless, at the time he filed his complaint, he was under imminent 23 danger of serious physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 24 2007). 25 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 26 do not meet the imminent danger exception. Plaintiff makes several unrelated allegations. For 27 example, Plaintiff alleges he was removed from a prison job without “justifiable reason,” that his 1 mail is delayed and/or delivered to other inmates, that the warden is “week” [sic] and “can’t 2 control her own staff,” that staff are “retainer outlaws” who “steals inmate stimulus check” and 3 retaliate “without justifiable reason.” (See Doc. 1 at 3, 4, 9.) Plaintiff does not allege or suggest 4 that he is under imminent danger of serious physical injury. Plaintiff is therefore precluded from 5 proceeding in forma pauperis in this action. 6 III. ORDER AND RECOMMENDATIONS 7 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a 8 district judge to this action and RECOMMENDS that: 9 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 10 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 11 filing fee. 12 These Findings and Recommendations will be submitted to the United States District 13 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 14 service of these Findings and Recommendations, Plaintiff may file written objections with the 15 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 16 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 17 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 18 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 IT IS SO ORDERED. 21 Dated: June 16, 2022 /s/ Sheila K. Oberto . 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27