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Washington v. California Department of Corrections and Rehabilitation

United States District Court, E.D. California

November 7, 2019

WILLIAM NATHANIEL WASHINGTON, Plaintiff,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 2)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE

         Clerk of Court to Assign a District Judge Plaintiff seeks to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2.) Because Plaintiff has three “strikes” under section 1915(g) and fails to show that he is in imminent danger of serious physical injury, the Court recommends that Plaintiff's motion be DENIED.

         I. Three-Strikes Provision of 28 U.S.C. § 1915

         28 U.S.C. § 1915 governs proceedings in forma pauperis. 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).

         II. DISCUSSION

         The Court takes judicial notice of three of Plaintiff's prior lawsuits that were dismissed on the grounds that they were frivolous, malicious, or failed to state a claim: (1) Washington v. City of Los Angeles, et al., No. 2:14-cv-09375-VAP-PJW (C.D. Cal.) (dismissed on August 6, 2015, as frivolous, malicious, or for failure to state a claim); (2) Washington v. Diamond, No. 2:18-cv-05883-VAP-PJW (C.D. Cal.) (dismissed on July 18, 2018, for failure to state a claim); and (3) Washington v. Lewis, No. 2:16-cv-03041-JAM-EFB (E.D. Cal.) (dismissed on October 24, 2018, for failure to state a claim)[1]. Each of these cases was dismissed before Plaintiff initaited the current action on November 1, 2019. Therefore, Plaintiff 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).

         The Court has reviewed Plaintiff's complaint, (Doc. 1), and finds that Plaintiff's allegations do not meet the imminent danger exception. According to Plaintiff, Defendants are liable for Plaintiff contracting Valley Fever because they did not follow prison protocols with respect to administering the Valley Fever/cocci skin test and by transferring Plaintiff to a facility with high incidence of Valley Fever. (Doc. 1 at 2-3.) Plaintiff's allegations, if true, do not show that he is 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.

         CONCLUSION AND RECOMMENDATIONS

         Based on the foregoing, the Court RECOMMENDS that:

1. Plaintiff's motion to proceed in forma pauperis, (Doc. 2), be DENIED; and,
2. This action be DISMISSED without prejudice to refiling upon prepayment of the filing fee.

         The Clerk of Court is DIRECTED to randomly assign a United States District Judge.

         These 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 ...


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