United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A
DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING MOTION TO PROCEED IN FORMA PAUPERIS BE DENIED
[ECF NO. 3]
Marvin Harris is appearing pro se in this civil rights action
pursuant to 42 U.S.C. § 1983, filed on August 15, 2019.
September 16, 2019, Plaintiff filed a motion to proceed in
Prison Litigation Reform Act of 1995 (PLRA) was enacted
“to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011). Pursuant to the PLRA, the in forma
pauperis statue was amended to include section 1915(g), a
non-merits related screening device which precludes prisoners
with three or more “strikes” from proceeding in
forma pauperis unless they are under imminent danger of
serious physical injury. 28 U.S.C. § 1915(g);
Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir.
2007). The statute provides that “[i]n 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).
Court finds that Plaintiff has incurred three or more strikes
under section 1915(g) prior to filing this lawsuit. The Court
takes judicial notice of the following cases: (1) Ripple
and Harris v. Gomez, Case No. 1:96-cv-05284-REC-SMS
(E.D. Cal.) (dismissed on April 30, 1996, as frivolous); (2)
Harris v. Ripple, Case No. 1:97-cv-05186-REC-HGB
(E.D. Cal.) (dismissed on July 30, 2017, as frivolous); (3)
Harris v. Coyle, Case No. 1:97-cv-05508-AWI-DLB
(E.D. Cal.) (dismissed on January 21, 1999, as frivolous,
malicious, and failure to state a claim); (4) Harris v.
Glass, Case No. 2:00-cv-00937-DFL-DAD (E.D. Cal.)
(dismissed on August 17, 2000, for failure to state a claim);
(5) Harris v. Edmonds, Case No.
1:00-cv-05857-OWW-LJO (E.D. Cal.) (dismissed on November 27,
2000, for failure to state a claim); (6) Harris v.
Edmonds, Case No. 1:00-cv-07160-REC-SMS (E.D. Cal.)
(dismissed on May 28, 2012 for failure to state a claim); and
(7) Harris v. Pliler, Case No. 2:01-cv-01125-WBS-DAD
(E.D. Cal.) (dismissed on March 15, 2012, for failure to
state a claim).
issue now becomes whether Plaintiff has met the imminent
danger exception, which requires Plaintiff to show that he is
under (1) imminent danger of (2) serious physical injury and
which turns on the conditions he faced at the time he filed
his complaint on July 26, 2019. Andrews, 493 F.3d at
1053-1056. Conditions which posed imminent danger to
Plaintiff at some earlier time are immaterial, as are any
subsequent conditions. Id. at 1053. While the injury
is merely procedural rather than a merits-based review of the
claims, the allegations of imminent danger must still be
plausible. Id. at 1055.
Court further finds that Plaintiff’s complaint
allegations do not meet the imminent danger exception.
Andrews, 493 F.3d at 1053. Plaintiff has not shown
that he is at risk of any serious physical injury. Rather,
Plaintiff contends that he was not allowed to dayroom and
yard time because he refused to go to school, and he was
issued a false rules violation report without a hearing.
Plaintiff’s factual allegations do not allege imminent
danger of serious physical injury. Accordingly, Plaintiff is
ineligible to proceed in forma pauperis in this action, and
he should be required to pre-pay the $400 filing fee to
proceed in this case.
the Clerk of the Court is HEREBY DIRECTED to randomly assign
a District Judge to this action.
for the reasons explained above, it is HEREBY RECOMMENDED
Plaintiff s motion to proceed in forma pauperis (ECF No. 3.)
be denied; and
Plaintiff be required to pay the $400.00 filing fee within
thirty (30) days of service of the Court’s order