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Blackman v. Stainer

United States District Court, E.D. California

February 24, 2015

TONY BLACKMAN, Plaintiff,
v.
STAINER, et al., Defendants.

ORDER AND FINDINGS AND RECOMMENDATIONS

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons discussed below, the undersigned recommends that plaintiff's request to proceed in forma pauperis be denied.

A prisoner may not proceed in forma pauperis:

if the prisoner has, on 3 or 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 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g).

Court records reflect that on at least three prior occasions, plaintiff has brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See: 1) Blackman v. Taxdahl, No. 1:04-cv-6389 AWI LJO (May 18, 2007 E.D. Cal.) (order dismissing action for failure to state a claim); 2) Blackman v. Evans, No. 1:06-cv-0081 GSA (Feb. 3, 2009 E.D. Cal.) (order dismissing action for failure to state a claim); and 3) Blackman v. Medina, 3: 05-cv-5390 SI (Mar. 13, 2006 N.D. Cal.) (order dismissing action for failure to state a claim). See also Blackman v. Hedgpath, 1:10-cv-1393 LJO MJS (Aug. 11, 2010 E.D. Cal.) (order designating plaintiff a three strikes litigant for purposes of section 1915(g).)

The section 1915(g) exception applies if the complaint makes a plausible allegation that the prisoner faced "imminent danger of serious physical injury" at the time of filing. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Although somewhat difficult to understand, it appears that plaintiff is claiming that defendants interfered with his ability to file administrative grievances as well as with his ability to challenge his criminal convictions. These claims do not suggest that plaintiff faced imminent danger of serious physical injury at the time he filed the complaint. Accordingly, the undersigned recommends that plaintiff's application to proceed in forma pauperis be denied.

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district judge to this action; and

IT IS HEREBY RECOMMENDED that plaintiff's application to proceed in forma pauperis (ECF No. 8) be denied; and plaintiff be ordered to pay the filing fee within thirty days of the adoption of these findings and recommendations.

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff 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." Plaintiff is advised that 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).


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