(PC) Larson v. Aln ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HARVEY EUGENE LARSON, Case No.: 1:22-cv-00811 BAK (GSA) (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA 13 v. PAUPERIS 14 V. ALN, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign District Judge 17 18 Plaintiff Harvey Eugene Larson is proceeding pro se in this civil rights action brought 19 pursuant to 42 U.S.C. § 1983. On July 1, 2022, Plaintiff filed an Application to Proceed In Forma 20 Pauperis by a Prisoner. (Doc. 2.) 21 Because Plaintiff has accrued three or more “strikes” under section 28 U.S.C. § 1915 and 22 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 notice1 of three of Plaintiff’s prior lawsuits that were dismissed as 5 frivolous or for a failure to state a claim upon which relief may be granted: (1) Larson v. 6 Schwarzenegger, et al., Case No. 2:06-cv-0940-GEB-GGH-P, 2007 WL 90419 (E.D. Cal. Jan. 9, 7 2007); (2) Larson v. Patton, et al., Case No. CIV S-01-1043 FCD JFM P, 2007 WL 3023333 8 (E.D. Cal. Oct. 15, 2007); and (3) Larson v. Runnels, et al., Case No. CIV S-07-0806 FCD DAD 9 P, 2008 WL 313963 (E.D. Cal. Feb. 4, 2008). Each of these actions was dismissed prior to the 10 commencement of the current action on July 1, 2022.2 Plaintiff is therefore subject to the section 11 1915(g) bar, and he is precluded from proceeding in forma pauperis in this action unless, at the 12 time he filed his complaint, he was under imminent danger of serious physical injury. See 13 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 14 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 15 do not meet the imminent danger exception. Plaintiff alleges trust account personnel failed to 16 notify him of a deposit into his account on April 1, 2021, and that certain other defendants failed 17 to provide Plaintiff with a letter “from Patent Office at mail call,” which apparently led to 18 Plaintiff being unable to refile a patent application because Plaintiff did not know “he had money 19 on the books.” (Doc. 1 at 3.) Plaintiff further contends trust account personnel “collected 20 restitution from money the Patent Office has refunded” in violation of “Title 15, Section 3097 21 ….” (Id.) Plaintiff does not allege or even suggest that he is under imminent danger of serious 22 physical injury. Plaintiff is therefore precluded from proceeding in forma pauperis in this action. 23 // 24 // 25 26 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 27 2 A Pacer search employing Plaintiff’s first name, middle initial and last name, conducted on July 6, 2022, reveals a total of 23 cases filed in the Ninth Circuit Court of Appeals, 2 cases filed in the Central District of California, 33 1 III. ORDER AND RECOMMENDATIONS 2 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a 3 district judge to this action and RECOMMENDS that: 4 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 5 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 6 filing fee. 7 These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 9 service of these Findings and Recommendations, Plaintiff may file written objections with the 10 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 11 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 12 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 13 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. 17 Dated: July 6, 2022 /s/ Gary S. Austin 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27