Opinion
Case No. 1:20-cv-00895-SKO (PC)
07-23-2020
JOSHUA D. BLAND, Plaintiff, v. R. DIAZ, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS ACTION (Doc. 5) 14-DAY DEADLINE Clerk of the Court to Assign a District Judge
Plaintiff has filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (Doc. 5.) 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 his application be denied and this action dismissed.
I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, "[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).
II. DISCUSSION
The Court takes judicial notice of four of Plaintiff's lawsuits that were dismissed because they were frivolous, malicious, or failed to state a claim on which relief can be granted: (1) Bland v. Cal. Dept. of Corrections & Rehabilitation, et al., No. 1:18-cv-01357-LJO-EPG (E.D. Cal.) (dismissed on May 2, 2019, for failure to state a claim); (2) Bland v. Brown, et al., No. 1:18-cv-01358-AWI-JDP (E.D. Cal) (dismissed on July 11, 2019, for failure to state a claim); (3) Bland v. Clark, et al., No. 1:19-cv-00197-DAD-BAM (E.D. Cal) (dismissed on April 17, 2020, for failure to state a claim); and (4) Bland v. District Attorney's Office of the County of Lassen, et al., No. 1:20-cv-00296-DAD-JDP (E.D. Cal) (dismissed on July 1, 2020, as frivolous and malicious and for failure to state a claim). Because Plaintiff has accrued more than three strikes, he 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).
The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Plaintiff alleges that, on June 1, 2020, a correctional sergeant approached his "holding cage" and "got ... in [his] face yelling profanity, spitting [and] sputtering—he wore no face mask ... threatening [his] safety." (Doc. 1 at 3.) Plaintiff states that he has asthma. (Id.) Plaintiff's allegations regarding this past event fail to show that, at the time he filed his complaint, he was under imminent future danger of serious physical injury.
It is also clear on the face of his complaint that Plaintiff failed to exhaust his administrative remedies prior to filing suit, as required by the Prison Litigation Reform Act. --------
III. CONCLUSION AND RECOMMENDATIONS
Based on the foregoing, the Court DIRECTS the Clerk of the Court to assign a district judge to this action and RECOMMENDS that:
1. Plaintiff's motion to proceed in forma pauperis (Doc. 5) be DENIED; and,
2. This action be DISMISSED without prejudice to refiling upon prepayment of the filing fee.
These 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 rights 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: July 23 , 2020
/s/ Sheila K . Oberto
UNITED STATES MAGISTRATE JUDGE