(PC) Wilson v. Hampson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID WAYNE WILSON, Case No.: 1:22-cv-00897-BAK (EPG) (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO 13 v. DENY PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS 14 VELMA HAMPSON, et al., 14-DAY OBJECTION PERIOD 15 Defendants. Clerk of the Court to Assign District Judge 16 17 Plaintiff David Wayne Wilson is proceeding pro se in this civil rights action pursuant to 18 42 U.S.C. § 1983. 19 On July 20, 2022, Plaintiff filed an Application to Proceed In Forma Pauperis by a 20 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 // 25 // 26 // 27 // 1 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 2 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides that “[i]n 3 no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or 4 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 5 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 6 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 7 danger of serious physical injury.” 28 U.S.C. § 1915(g). 8 II. DISCUSSION 9 The Court takes judicial notice1 of four of Plaintiff’s prior lawsuits that were dismissed as 10 frivolous or for a failure to state a claim upon which relief may be granted: (1) Wilson v. Tilton, 11 Case No. 2:06-cv-01031-LKK-PAN (E.D. Cal.) (dismissed September 12, 2006, for failure to 12 state a claim); (2) Wilson v. Schwartz, Case No. 2:05-cv-01649-GEB-CMK (E.D. Cal.) 13 (dismissed October 31, 2006, for failure to state a claim); (3) Wilson v. Dovey, Case No. 2:06-cv- 14 01032-FD-EFB (E.D. Cal.) (dismissed March 8, 2007, for failure to state a claim); and (4) Wilson 15 v. Veal, Case No. 2:06-cv-00067-FCD-KJM (E.D. Cal.) (dismissed June 4, 2007, for failure to 16 state a claim). Each of these actions was dismissed prior to the commencement of the current 17 action on July 20, 2022. Plaintiff is therefore subject to the section 1915(g) bar, and he is 18 precluded from proceeding in forma pauperis in this action unless, at the time he filed his 19 complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes, 20 493 F.3d 1047, 1052-53 (9th Cir. 2007). 21 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations 22 do not meet the imminent danger exception. Plaintiff generally alleges the named defendants have 23 denied him court access by employing procedures that obstruct his ability to file legal documents. 24 Plaintiff complains about the five days within which law library staff have to complete a 25 photocopy request, page limitations, and related legal mail delays. He also appears to be 26 challenging the inmate grievance process and how those grievances are processed. (See Doc. 1.) 27 1 1 Plaintiff’s allegations concerning the denial of court access do not involve imminent 2 danger of serious physical injury. Bradford v. Ceballos, No. 1-20-cv-01821-SAB (PC), 2021 WL 3 53167, at *2 (E.D. Cal. Jan. 6, 2021) (“Plaintiff’s general assertion that the alleged improper 4 processing of his appeal caused him harm fails to demonstrate that plaintiff was ‘under imminent 5 danger of serious physical injury’ when he filed the instant complaint”); Simmons v. Kishbaugh, 6 No. 2:19-cv-1650-TLN-EFB P, 2020 WL 1853038, at *1 (E.D. Cal. Apr. 13, 2020) (“plaintiff 7 alleges an access to courts claim … which fails to demonstrate that plaintiff was under imminent 8 danger of serious physical injury when he filed this action”); Thomas v. Parks, No. 1:16-cv- 9 01393-LJO-JLT (PC) 2018 WL 4373021, at *2 (E.D. Cal. Sept. 13, 2018) (“Plaintiff’s allegations 10 in this action are based largely on difficulties with obtaining copies of legal documents he 11 prepared for other inmates and his access to the law library as well as acts of harassment and 12 retaliation … access to the courts, even if based on unconstitutional retaliatory motive, does not 13 equate to imminent danger of serious physical injury”); Prophet v. Clark, No. CV 1-08-00982- 14 FJM, 2009 WL 1765197, at *1 (E.D. Cal. June 22, 2009) (finding prisoner’s access to the courts, 15 interference with legal mail, and retaliation claims insufficient to satisfy § 1915(b) exception for 16 case4s of “imminent danger of serious physical injury”). Plaintiff is therefore precluded from 17 proceeding in forma pauperis in this action. 18 III. ORDER AND RECOMMENDATIONS 19 For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a 20 district judge to this action and RECOMMENDS that: 21 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 22 2. Plaintiff be ordered to pay the $402.00 filing fee in full within 30 days. 23 These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 25 service of these Findings and Recommendations, Plaintiff may file written objections with the 26 Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and 27 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 1 | waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 2 | Baxter y. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 | ITIS □□ ORDERED. Dated: July 28, 2022 [Jee ey □□ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28