United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT
PLAINTIFF BE REQUIRED TO PAY THE $400.00 FILING FEE IN FULL
OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN (14) DAYS
Thomas (“Plaintiff”) is a state prisoner
proceeding pro se with this civil rights action.
Plaintiff filed the complaint commencing this action on
October 21, 2019. (ECF No. 1). Plaintiff did not pay the
filing fee or file an application to proceed in forma
Court finds that Plaintiff had at least three
“strikes” prior to filing this action and that
Plaintiff was not in imminent danger of serious physical
injury at the time he filed the action, the Court will
recommend that Plaintiff be required to pay the $400 filing
fee in full if he wants to proceed with the action
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
U.S.C. § 1915 governs proceedings in forma
pauperis. Section 1915(g) 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.”
determining whether a case counts as a “strike, ”
“the reviewing court looks to the dismissing
court's action and the reasons underlying it….
This means that the procedural mechanism or Rule by which the
dismissal is accomplished, while informative, is not
dispositive.” Knapp v. Hogan, 738 F.3d 1106,
1109 (9th Cir. 2013) (internal citation omitted). See
also O'Neal v. Price, 531 F.3d 1146, 1153 (9th Cir.
2008) (quoting Yourish v. Cal. Amplifier, 191 F.3d
983, 986-87 (9th Cir. 1999) (alteration in original)
(“no ‘particular formalities are necessary for an
order that serves as the basis of [an involuntary]
PLAINTIFF'S APPLICATION TO PROCEED IN FORMA
initiated this action on October 21, 2019. (ECF No. 1). The
Court finds that, prior to this date, Plaintiff had at least
Court takes judicial notice of Thomas v. Parks, E.D.
CA, Case No. 1:16-cv-01393, ECF No. 44, in which Chief
District Judge Lawrence J. O'Neill found that Plaintiff
had at least three “strikes” prior to filing the
action. The action was filed on September 20, 2016.
Parks, ECF No. 1.
Court also takes judicial notice of: 1) Thomas v.
Terhune, E.D. CA, Case No. 1:03-cv-05467, ECF Nos. 24
& 26 (case dismissed for failure to state a claim); 2)
Thomas v. Parks (“Parks II”),
9th Cir., Case No. 18-16947, ECF No. 2 (appeal dismissed
because “the appeal is so insubstantial as to not
warrant further review”); 3) Thomas v. Parks
(“Parks III”), 9th Cir., Case No.
19-15193, ECF No. 2 (appeal dismissed because “the
appeal is so insubstantial as to not warrant further
review”); and 4) Thomas v. Davey, 9th Cir.,
Case No. 18-16017, ECF No. 2 (appeal dismissed because
“the appeal is so insubstantial as to not warrant
on Parks, as well as the action and appeals list
above, the Court finds that Plaintiff had at least three
“strikes” prior to filing this action.
Plaintiff had at least “three strikes” prior to
filing this action, Plaintiff is precluded from proceeding
in forma pauperis unless Plaintiff was, at the time
the complaint was filed, in imminent danger of serious
physical injury. The availability of the imminent danger
exception “turns on the conditions a prisoner faced at
the time the complaint was filed, not at some earlier or
later time.” Andrews v. Cervantes, 493 F.3d
1047, 1053 (9th Cir. 2007). “Imminent danger of serious
physical injury must be a real, present threat, not merely
speculative or hypothetical.” Blackman v.
Mjening, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4,
2016). To meet his burden under § 1915(g), Plaintiff
must provide “specific fact allegations of ongoing
serious physical injury, or a pattern of misconduct
evidencing the likelihood of imminent serious physical
injury.” Martin v. Shelton,319 F.3d 1048,
1050 (8th Cir. 2003). “[V]ague and utterly conclusory
assertions” of imminent danger are insufficient.
White v. Colorado,157 F.3d 1226, 1231-32 (10th Cir.
1998). See also Martin v. Shelton, 319 F.3d 1048,
1050 (8th Cir. 2003) (“[C]onclusory assertions”