(PC) Harper v. Powell ( 2024 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DANIEL HARPER, No. 2:24-cv-1343 AC P 11 Plaintiff, 12 v. ORDER AND FINDINGS AND RECOMMENDATIONS 13 B. POWELL, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with this civil action and seeks leave to 17 proceed in forma pauperis under 28 U.S.C. § 1915(a). 18 I. Procedural History 19 This action was initiated in the Fresno Division of this court. After the case was filed, the 20 assigned magistrate judge issued findings and recommendations recommending that plaintiff’s 21 motion to proceed in forma pauperis be denied because plaintiff has had three or more civil 22 actions dismissed on the ground that they were frivolous, malicious, or failed to state a claim. 23 ECF No. 7. In response to the findings and recommendations, plaintiff filed a request to dismiss 24 the case so that he could re-file it in the Sacramento Division.1 ECF No. 8. Instead of dismissing 25 the case, the magistrate judge vacated the findings and recommendations and transferred the case 26 to this division. ECF No. 10. 27 1 Plaintiff states that he submitted the case for e-filing in Sacramento, but the litigation 28 coordinator mistakenly filed it in Fresno. ECF No. 8. 1 II. Three Strikes Analysis 2 Plaintiff seeks leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). ECF No. 2. 3 The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States to 4 authorize the commencement and prosecution of any suit without prepayment of fees by a person 5 who submits an affidavit indicating that the person is unable to pay such fees. However, 6 [i]n no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the 7 prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United 8 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 9 unless the prisoner is under imminent danger of serious physical injury. 10 11 28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded 12 from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three 13 frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook, 14 169 F.3d 1176, 1178 (9th Cir. 1999). 15 “[Section] 1915(g) should be used to deny a prisoner’s [in forma pauperis] status only 16 when, after careful evaluation of the order dismissing an action, and other relevant information, 17 the district court determines that the action was dismissed because it was frivolous, malicious or 18 failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). “[W]hen a 19 district court disposes of an in forma pauperis complaint ‘on the grounds that [the claim] is 20 frivolous, malicious, or fails to state a claim upon which relief may be granted,’ such a complaint 21 is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such dismissal as denial of 22 the prisoner’s application to file the action without prepayment of the full filing fee.” O’Neal v. 23 Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original). Dismissal also counts 24 as a strike under § 1915(g) “when (1) a district court dismisses a complaint on the ground that it 25 fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff then fails to file an 26 amended complaint” regardless of whether the case was dismissed with or without prejudice. 27 Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017). 28 Inspection of other cases filed by plaintiff has led to the identification of at least four cases 1 that qualify as strikes. The court takes judicial notice of the following lawsuits filed by plaintiff:2 2 1. Harper v. Sacramento County Sheriff, No. 2:07-cv-0748 ALA (E.D. Cal.) (complaint 3 dismissed with leave to amend for failure to state a claim (ECF No. 7), case dismissed 4 on November 14, 2007, for failure to file an amended complaint (ECF No. 12)); 5 2. Harper v. Wilcox, No. 2:07-cv-1158 LKK KJM (E.D. Cal.) (application to proceed in 6 forma pauperis denied and case dismissed on January 28, 2008, for failure to state a 7 claim (ECF No. 6, adopting ECF No. 5)); 8 3. Harper v. Costa, No. 2:07-cv-2149 LKK DAD (E.D. Cal.) (case dismissed on 9 defendants’ motion to dismiss for failure to state a claim (ECF No. 54, adopting ECF 10 No. 42)); and 11 4. Harper v. Morgan, No. 2:08-cv-2526 GGH (E.D. Cal.) (case dismissed on June 16, 12 2009, for failure to state a claim (ECF No. 15)). 13 All of the preceding cases were dismissed well in advance of the April 17, 2024 filing of 14 the instant action, and none of the strikes have been overturned. Therefore, this court finds that 15 plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent danger of 16 serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must have 17 alleged facts that demonstrate that he was “under imminent danger of serious physical injury” at 18 the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007) 19 (“[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of 20 the ‘imminent danger’ exception to § 1915(g).”). “[T]he imminent danger exception to the PLRA 21 three-strikes provision requires a nexus between the alleged imminent danger and the violations 22 of law alleged in the complaint.” Ray v. Lara, 31 F.4th 692, 695 (9th Cir. 2022). 23 The complaint alleges that on October 27, 2022, plaintiff was falsely charged with battery 24 on a peace officer and asserts that plaintiff’s rights were violated by the false charges and 25 2 The court “may take notice of proceedings in other courts, both within and without the federal 26 judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) 27 (citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose 28 accuracy cannot reasonably be questioned). 1 | subsequent disciplinary proceedings. ECF No. 1 at 4-12. There are no allegations that would 2 || demonstrate an imminent risk of serious physical injury at the time of filing, and the undersigned 3 || will therefore recommend that plaintiff be required to pay the filing fee in full or have the 4 || complaint dismissed. 5 II. Plain Language Summary of this Order for a Pro Se Litigant 6 You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis 7 || status unless you show the court that you were in imminent danger of serious physical injury at 8 | the time you filed the complaint. You have not shown that you were in imminent danger of 9 || serious physical injury at the time you filed the complaint and so it is being recommended that 10 || your motion to proceed in forma pauperis be denied and you be required to pay the whole filing 11 || fee at one time. 12 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 13 || assign a United States District Judge to this action. 14 IT IS FURTHER RECOMMENDED that: 15 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be DENIED; and 16 2. Plaintiff be ordered to pay the entire $405.00 in required fees within thirty days or face 17 || dismissal of the case. 18 These findings and recommendations are submitted to the United States District Judge 19 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 20 || after being served with these findings and recommendations, plaintiff may file written objections 21 || with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 22 || and Recommendations.” Plaintiff is advised that failure to file objections within the specified 23 || time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 24 | (9th Cir. 1991). 25 || DATED: May 21, 2024 A / 26 ALLISONCLAIRE’ 7 UNITED STATES MAGISTRATE JUDGE 28