Opinion
2:23-cv-00770-JDP (PC)
05-16-2023
THOMAS JOSEPH MELGER, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATIONS, Defendant.
ORDER AND FINDINGS AND RECOMMENDATIONS
JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, ECF No. 2. However, plaintiff is a “Three-Striker” within the meaning of Title 28 U.S.C. § 1915(g).
The court takes judicial notice of the following cases constituting strikes: Melger v. Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.) (dismissing without leave to amend for failure to state a claim); Melger v. U.S. Dep't of the Treasury, 1:21-cv-01183-JLT-SAB (E.D. Cal.) (dismissing for failure to state a claim, failure to comply with court orders, and failure to prosecute); and Melger v. Hopper, 2:17-cv-00224-JAM-DMC (E.D. Cal.) (dismissing for failure to state a claim).
In Melger v. Sacramento Sheriff Dep't, No. 2:21-cv-01611-WBS-AC, Judge Claire issued findings and recommendations denying plaintiff's in forma pauperis application because he is a Three Striker. The cases Judge Claire relied upon were: Melger v. Wesp, Case No. 2:16-cv-01103-KJN (E.D. Cal.); Melger v. Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and Melger v. Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.). Judge Shubb adopted those recommendations in full and denied plaintiff's application to proceed in forma pauperis.
Despite being a “three-striker,” a plaintiff may be afforded an opportunity to proceed in forma pauperis under section 1915(g) if he alleges that he was in imminent danger at the time he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).
Here, plaintiff has alleged that he is in imminent danger. ECF No. 1 at 3. In the complaint, he alleges that five years ago, a terrorist (or someone else) implanted a device in his head, and since then he has heard voices, music, and mechanical sounds in his head. Id. He tried to obtain an x-ray that would permit him to see the implant, but after he was unable to do so, he wrote to the Federal Bureau of Investigation (“FBI”) several times to see if it would provide him with an x-ray. Id. The FBI did not respond to plaintiffs letters, and he claims that the FBI violated his First, Fourth, and Fourteenth Amendment rights. Id. Plaintiff additionally claims that he is in imminent danger.
Section 1915(g) states in relevant part that a prisoner who has accumulated three strikes shall “[i]n no event . . . bring a civil action or appeal a judgment in a civil action or proceeding [IFP] . . . unless the prisoner is under imminent danger of serious physical injury.” The section 1915(g) exception applies if the complaint makes a plausible allegation that the prisoner faced “imminent danger of serious physical injury” at the time of filing. Id.; Andrews, 493 F.3d at 1055. Recently, the Ninth Circuit has adopted the approach taken by other circuit: there must be a nexus between a plaintiff's claims and the alleged danger. See Ray v. Lara, 31 F.4th 692, 700 (9th Cir. 2022).
Plaintiff alleges that he has had implants in his head for five years. The alleged implantation, which predates plaintiff's filing by several years, does not qualify him for the imminent danger exception of the Three-Striker rule. See Bontemps v. Francis, No. 2:18-cv-2708-DB P, 2019 WL 446360, at *3 (E.D. Cal. Feb. 5, 2019) (finding that the revocation of the plaintiff's mobility-related devices several months prior to the filing of his complaint did not qualify him for the imminent danger exceptions to the Three Strikes exception). Moreover, plaintiff's allegation that unknown individuals, possibly terrorists, implanted devices in his head does not relate to his claim that the FBI violated his constitutional rights.
Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge to this action.
Further, it is RECOMMENDED that plaintiff's application to proceed in forma pauperis, ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any order adopting these recommendations.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.