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Blackman v. Kelly

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


October 16, 2009

TONY BLACKMAN, PLAINTIFF,
v.
E. KELLY, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATION

Plaintiff is a state prisoner proceeding pro se in a civil rights action challenging the conditions of his confinement.

Plaintiff, an inmate in the custody of the California Department of Corrections and Rehabilitation at Corcoran State Prison, brings this action pursuant to 42 U.S.C. § 1983 against correctional officials employed by the CDCR at Corcoran State Prison. Plaintiff's complaint sets forth allegations that defendants have confiscated his written inmate appeals.

The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious injury." 28 U.S.C. § 1915(g).

This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Blackman v. Harwell, et al., 99-5822 REC HGB P (E. Dist. Cal.); Blackman v. Medina, 05-CV-05390-SI (N. Dist. Cal.); Blackman v. Variz , 06-CV 06398 SI (N. Dist. Cal.). Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges facts indicating that he is in imminent danger of serious physical injury. There are no such facts alleged in complaint filed in this case. Accordingly, on September 11, 2009, an order to show cause was entered, directing Plaintiff to show cause why he should not be denied leave to proceed in forma pauperis.

In response, Plaintiff filed a first amended complaint. The first amended complaint consists of a rambling narrative regarding the conditions of his confinement. Plaintiff appears to allege that he does not get sufficient law library access. Plaintiff does not, however, allege any facts that satisfy section 1915(g).

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff's request to proceed in forma pauperis denied, and Plaintiff be directed to submit the $350 filing fee in full.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.

20091016

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