United States District Court, E.D. California
April 29, 2015
TONY L. HILL, Plaintiff,
CDCR, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS
(Doc. 2) 30-DAY DEADLINE
JENNIFER L. THURSTON, Magistrate Judge.
Plaintiff, Tony L. Hill, is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint in this action on April 21. 2015. On that same date, Plaintiff filed an application to proceed in forma pauperis, which is pending before the Court.
A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
Section 1915 of Title 28 of the United States Code 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 Hill v. White, et al., Case Number 1:13-cv-01275-AWI-DLB (PC). In that action, an order issued denying Plaintiff's application to proceed in forma pauperis as Plaintiff had four 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). Plaintiff's Complaint arises from an alleged false rules violation report that was filed against him at Wasco State Prison in April of 2013 which was dismissed. Subsequently, Plaintiff alleges a series of events by the Defendants involved in that false RVR and adverse events that occurred after he was transferred to the Secured Housing Unit at Corcoran State Prison. Plaintiff alleges events that range from tampering of his inmate appeals (Doc. 1, pp. 5-6), to being denied access to the canteen and store ( id., at p. 7); being given food trays with flies on them ( id. ); having his cell door repeatedly banged on by a correctional officer ( id. ); having $40 that his brother sent to him stolen ( id., at 7-8); being held at a Level IV prison when he should be at a Level III prison ( id., at pp. 7, 9); being denied access to the law library so he couldn't electronically file a complaint ( id., at p. 11); notices not being posted as to when the law library would be closed ( id., at pp. 12-13); and having his inmate appeals wrongly handled/denied ( id., at p. 14). None of these allegations even suggest Plaintiff is at risk of imminent danger at the time he filed the Complaint.
Plaintiff therefore fails to allege specific facts in the Complaint indicating that he was under imminent danger at the time he filed the Complaint. Based on the foregoing, the Court finds that Plaintiff fails to allege an imminent danger of serious physical injury necessary to bypass § 1915(g)'s restriction on filing suit without prepayment of the filing fee.
Accordingly, Plaintiff may not proceed in forma pauperis in this action and must submit the appropriate filing fee in order to proceed with this action.
C. CONCLUSION and RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to proceed in forma pauperis, filed April 21. 2015 (Doc. 2), be denied and that Plaintiff be ordered to pay the filing fee in full.
These Findings and Recommendations will be submitted to the United States District udge 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, Plaintiff may file written objections with the Court. The 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 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.