United States District Court, E.D. California
April 29, 2015
ANTHONY RECARDO GONZALES-TURNER, Plaintiff,
SANDOR, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO REVOKE PLAINTIFF'S IN FORMA PAUPERIS STATUS AND TO REQUIRE PLAINTIFF TO PAY THE FILING FEE
(Docs. 3, 5, 11) 30-DAY DEADLINE.
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff, Anthony Recardo Gonzales-Turner, is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action on January 26, 2015. On that same date, Plaintiff filed an application to proceed in forma pauperis, which was granted the next day. (Docs. 3, 5.)
A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner bring a civil action... under this section 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).
The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of Turner v. Cates, et al., Case Number 2:11-cv-01744-CKD P. In that action, an order issued on August 22, 2011, denying Plaintiff's application to proceed in forma pauperis as Plaintiff had at least three strikes under section 1915(g) prior to its filing and finding that Plaintiff had not shown that he was in imminent danger of serious physical injury at the time he filed suit which precluded him from proceeding in forma pauperis. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis in this action unless at the time the Complaint was filed, he was under imminent danger of serious physical injury.
The Court has reviewed Plaintiff's Complaint and finds that he does not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In this action, Plaintiff complains of events that occurred at three separate detention facilities: Deuel Vocational Institution ("DVI") in Tracy, California (¶¶ 12-22); Pelican Bay State Prison ("PBSP") in Crescent City, California (¶¶ 21-42); and Corcoran State Prison ("CSP") in Corcoran, California (¶¶43-80). However, when Plaintiff filed this action, he was housed at Salinas Valley State Prison ("SVSP") in Soledad, California. ( See Doc. 1, p. 1.) The Complaint contains allegations regarding past retaliatory wrongs that occurred at DVI, PBSP, and CSP. Plaintiff does not state any allegations of wrongdoing at PVSP. Thus, Plaintiff's allegations do not show that he was in imminent danger of serious physical injury at PVSP at the time he filed suit, which precludes him from proceeding in forma pauperis in this action. Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).
On April 20, 2015, Plaintiff filed a motion requesting the District Court's consideration and review of his Complaint. (Doc. 11.) In that motion, Plaintiff alleges that the Clerk of the Court has obstructed his "access to freely communicate with the court by motion practice to prosecute this action;" that too much money are being "extorted" from his prison account under the order granting his in forma pauperis status; that he intends to seek default judgment based on "the prejudices complained of... commercial crimes under admirality [sic] maritime laws and the prejudice impedes [his] court access to due process/equal protection clause of the 4th, 8th, 9th, 10, 13th, and 14th Amends. to the U.S. Const.;" and that he "invokes his rights under the War Powers Act § 1933" requesting a hearing and review of his Complaint. ( Id. ) Revocation of Plaintiff's in forma pauperis status will resolve Plaintiff's protestation that a lien has been placed against his prison account for too high of a percentage of the filing fee and Plaintiff's request for a hearing and review of his Complaint should be denied as his case will be screened for cognizable claims after Plaintiff pays the filing fee in full.
C. CONCLUSION and RECOMMENDATION
Plaintiff had more than three strikes under 28 U.S.C. §1915(g) before he filed this action. His allegations do not establish that he was facing imminent danger of serious physical injury at the time the Complaint was filed - when he was housed at PVSP. Thus, the Court recommends that Plaintiff's in forma pauperis status be revoked, that Plaintiff be ordered to pay the filing fee for this action in full, and that Plaintiff's motion for consideration and review of his Complaint be denied.
Accordingly, it is HEREBY RECOMMENDED that:
1. Plaintiff's in forma pauperis be revoked and the order that granted it be stricken from the record;
2. Plaintiff be ordered to pay the $400.00 filing fee in full; and
3. Plaintiff's motion for consideration and review of his Complaint, filed April 20, 2015 (Doc. 11), be denied.
These Findings and Recommendations will be 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 30 days after being served with these Findings and Recommendations, the parties may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.