United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S
MOTION TO PROCEED IN FORMA PAUPERIS (DOC. 2)
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
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
Three-Strikes Provision of 28 U.S.C. § 1915
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).
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). 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).
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.
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.
Clerk of Court is DIRECTED to randomly
assign a United States District Judge.
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 ...