Thomas v. C. Pfeiffer

          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

         I. BACKGROUND

         Edward 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 pauperis.

         As the 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

         II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)

         28 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.”

         In 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] dismissal.'”).

         III. PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS

         a. Strikes

         Plaintiff initiated this action on October 21, 2019. (ECF No. 1). The Court finds that, prior to this date, Plaintiff had at least three “strikes.”

         The 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.

         The 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”);^[1] 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 further review”).

         Based 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.

         b. Imminent Danger

         As 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” are ...