Opinion
Case No. 1:20-cv-00637-NONE-BAM (PC)
05-08-2020
JOSHUA BLAND, Plaintiff, v. THE PEOPLE OF THE STATE OF CALIFORNIA, et al., Defendants.
FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF No. 2)
FOURTEEN (14) DAY DEADLINE
Plaintiff Joshua Bland ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff's motion to proceed in forma pauperis, filed May 5, 2020. (ECF No. 2.)
Plaintiff is subject to 28 U.S.C. § 1915(g), which 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."
The Court takes judicial notice of the following United States District Court Cases: (1) Bland v. Cal. Dep't of Corrs. & Rehab., Case No. 1:18-cv-01357-LJO-EPG (E.D. Cal.) (dismissed May 2, 2019, for failure to state a claim); (2) Bland v. Brown, Case No. 1:18-cv-01358-AWI-JDP (E.D. Cal.) (dismissed July 11, 2019, for failure to state a claim); and (3) Bland v. Clark, Case No. 1:19-cv-00197-DAD-BAM (E.D. Cal.) (dismissed April 17, 2020, for failure to state a claim).
The Court has reviewed Plaintiff's complaint and finds that his allegations do not satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Plaintiff raises claims regarding "constitutional impermissible application of statutes," alleging that the State of California and the Superior Court of California for Fresno County violated Plaintiff's rights under the Fourteenth Amendment. Plaintiff challenges certain state statutes under which he is convicted, and seeks damages and punitive damages. (ECF No. 1.) However, Plaintiff does not allege that he was under any imminent danger of serious physical injury at the time the complaint was filed. Therefore, Plaintiff has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action.
The Court expresses no opinion on the merits of Plaintiff's claims. --------
Accordingly, it is HEREBY RECOMMENDED that:
1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 U.S.C. § 1915(g); and
2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this action.
These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." Plaintiff is advised that the failure to file objections within the specified time may result in the waiver of the "right to challenge the magistrate's factual findings" on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). IT IS SO ORDERED.
Dated: May 8 , 2020
/s/ Barbara A . McAuliffe
UNITED STATES MAGISTRATE JUDGE