United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
APPLICATIONS TO PROCEED IN FORMA PAUPERIS (DOCS.
8-10) 14-DAY DEADLINE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Marvin Harris is a state prisoner proceeding pro se
in this civil rights action pursuant to 42 U.S.C. §
1983. (Doc. 1.) On September 25, 2019, and October 7, 2019,
Plaintiff filed two applications to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. (Docs.
8-10.) Plaintiff's applications should be
DENIED because Plaintiff has three strikes
under section 1915 and fails to show that he is in imminent
danger of serious physical injury.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
U.S.C. § 1915 governs proceedings in forma
pauperis. The statute provides, “[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 may take judicial notice of court records. United
States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Here, the Court takes judicial notice of a number of
Plaintiff's prior lawsuits that were dismissed as
frivolous, as malicious, or for failure to state a claim: (1)
Ripple and Harris v. Gomez, et al., No.
1:96-cv-05284-REC-SMS (E.D. Cal.) (dismissed on April 29,
1996, as frivolous); (2) Harris and Ripple v. Hickey, et
al., No. 1:97-cv-05186-REC-HGB (E.D. Cal.) (dismissed on
July 28, 1997, as frivolous); (3) Harris v. Coyle,
No. 1:97-cv-05508-AWI-DLB (E.D. Cal.) (dismissed on January
21, 1999, as frivolous and malicious and for failure to state
a claim); (4) Harris v. Glass, 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,
No. 1:00-cv-05857-OWW-LJO (E.D. Cal.) (dismissed on November
27, 2000, for failure to state a claim); (6) Harris v.
Pliler, et al., No. 2:01-cv-01125-WBS-DAD (E.D. Cal.)
(dismissed on March 15, 2002, for failure to state a claim);
and (7) Harris v. Edmonds, No. 1:00-cv-07160-REC-SMS
(E.D. Cal.) (dismissed on May 24, 2002, for failure to state
a claim). Each of these actions was dismissed prior to the
commencement of the current action on September 3, 2019.
Plaintiff is therefore subject to the section 1915(g) bar,
and he is precluded from proceeding in forma
pauperis in this action unless, at the time he filed his
complaint, he was under imminent danger of serious physical
injury. See Andrews v. Cervantes, 493 F.3d 1047,
1052-53 (9th Cir. 2007).
Court has reviewed Plaintiff's complaint in this action,
(Doc. 1), and finds that Plaintiff's allegations do not
meet the imminent danger exception. According to Plaintiff,
Defendants Madden and Torres subjected him to an unlawful
search of his cell and taking of property. Id. at
3-4. Plaintiff's allegations, if true, do not show that
he was in imminent danger of serious physical injury. See
Andrews, 493 F.3d at 1055. Thus, Plaintiff is precluded
from proceeding in forma pauperis in this action.
on the foregoing, it is HEREBY RECOMMENDED that:
Plaintiff's motions to proceed in forma
pauperis, (Docs. 8-10), be DENIED;
Plaintiff be required to pay, within 14 days of the
Court's order adopting these Findings and
Recommendations, the filing fee of $400.00; and
Plaintiff be informed that failure to timely pay the filing
fee will result in dismissal of this action.
Findings and Recommendations will be submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within
14 days of the date of service of
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's failure
to file objections within the specified time may result in
waiver of his ...