(PC) Larson v. Aln ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HARVEY EUGENE LARSON, No. 1:22-cv-00811-DAD-BAK (GSA) (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DENYING 14 V. ALN, et al., MOTION TO PROCEED IN FORMA PAUPERIS 15 Defendants. (Doc. Nos. 2, 7) 16 17 Plaintiff Harvey Eugene Larson is a state prisoner proceeding pro se in this civil rights 18 action pursuant to 42 U.S.C. § 1983. Plaintiff commenced this action by filing a complaint and 19 an application to proceed in forma pauperis on July 1, 2022. (Doc. Nos. 1, 2). The matter was 20 referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 21 302. 22 On July 6, 2022, the assigned magistrate judge issued findings and recommendations 23 recommending that plaintiff’s application to proceed in forma pauperis (Doc. No. 2) be denied 24 because: (1) he is subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the 25 allegations of plaintiff’s complaint do not satisfy the “imminent danger of serious physical injury” 26 exception to § 1915(g). (Doc. No. 7) (citing Andrews v. Cervantes, 493 F.3d 1047, 1051−55 (9th 27 Cir. 2007)). The magistrate judge also recommended that plaintiff be ordered to pay the required 28 $402.00 filing fee in full in order to proceed with this action. (Id. at 3.) The findings and 1 recommendations were served on plaintiff and contained notice that any objections thereto were 2 to be filed within fourteen (14) days after service. (Id.) Plaintiff timely filed objections to the 3 pending findings and recommendations on July 22, 2022. (Doc. No. 9.) 4 In his objections to the pending findings and recommendations, plaintiff contends that he 5 is not subject to the three strikes bar under § 1915(g) because the orders relied upon in the 6 findings and recommendations as strikes, as well as orders in several other cases brought by him 7 that were not relied upon in the pending findings and recommendations, should not qualify as 8 strike dismissals under that statute. (Doc. No. 9 at 2–14.) However, the court concludes that 9 plaintiff is mistaken in his understanding and application of § 1915(g). The undersigned has 10 reviewed the dockets in the three cases that were dismissed by the orders relied upon in the 11 pending findings and recommendations, and has determined that all three of those orders qualify 12 as strike dismissals under § 1915(g) because in each of those cases, a district judge issued an 13 order dismissing that action due to plaintiff’s failure to state a cognizable claim. (See Doc. No. 7 14 at 2) (citing dismissal orders). 15 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the undersigned has 16 conducted a de novo review of the case. Having carefully reviewed the entire file, including 17 plaintiff’s objections, the undersigned concludes that the findings and recommendations are 18 supported by the record and proper analysis. 19 Accordingly, 20 1. The findings and recommendations issued on July 6, 2022 (Doc. No. 7) are 21 adopted; 22 2. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is denied; 23 3. Within thirty (30) days from the date of service of this order, plaintiff shall pay the 24 $402.00 filing fee in full in order to proceed with this action; 25 4. Plaintiff is forewarned that failure to pay the filing fee within the specified time 26 will result in the dismissal of this action; and 27 ///// 28 ///// 1 5. This matter is referred back to the assigned magistrate judge for further 2 proceedings consistent with this order. 3 | IT IS SO ORDERED. a 7. Dated: _ July 26, 2022 VL AL oye 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28