Opinion
No. 2:18-cv-0722-EFB P
03-28-2019
MITCHELL DIXON, JR., Plaintiff, v. TARGET SUPER MARKET, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a county inmate proceeding without counsel in an action brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). As discussed below, plaintiff has not demonstrated that he is eligible to proceed in forma pauperis.
A prisoner may not proceed in forma pauperis:
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). Court records reflect that on at least three prior occasions, plaintiff has brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See (1) Dixon v. Schubert, No. 2:16-cv-0168-TLN-AC (E.D. Cal.), ECF No. 14 (May 20, 2016 order dismissing action as frivolous and seeking monetary relief from defendants who are immune from such relief); (2) Dixon v. Stym, No. 2:16-cv-0043-KJM-KJN (E.D. Cal.) (Jan. 3, 2017 order dismissing action as frivolous); (3) Dixon v. Clerk, U.S. District Court, No. 2:17-cv-1847-MCE-AC (E.D. Cal.) (Oct. 6, 2017 order dismissing action as frivolous and seeking monetary relief from defendants who are immune from such relief); and (4) Dixon v. Alvarez, No. 1:17-cv-316-MJS (E.D. Cal.) (May 15, 2017 order dismissing action for failure to state a claim).
In a recent decision, the Ninth Circuit held that all parties, including unserved defendants, must consent in order for jurisdiction to vest with the magistrate judge pursuant to 28 U.S.C. § 636(c)(1). Williams v. King, 875 F.3d 500 (9th Cir. 2017). Notwithstanding this holding, numerous district courts have held that prior dismissals of cases with unserved defendants by magistrate judges may still be properly counted as strikes. See, e.g. Hoffman v. Pulido, No. 1:18-cv-0209-AWI-SKO, 2018 U.S. Dist. LEXIS 42949, at *6-8 (E.D. Cal. Mar. 15, 2018) (reasoning that an attack on the validity of a prior case would be an improper collateral challenge in a subsequent proceeding); Hoffman v. Sherman, No. 1:18-cv-0195-LJO-EPG, 2018 U.S. Dist. LEXIS 50837, at *7 (E.D. Cal. Mar. 27, 2018) (concluding that a determination as to jurisdiction of the dismissing court in prior cases goes beyond the scope of review under § 1915(g)). --------
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. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff alleges that he was beaten and arrested at a Target store by Target loss prevention officers sometime on or before February 10, 2018. ECF No. 1 at 8. He does not allege that he was under an imminent danger of serious physical injury when he filed this action, on April 2, 2018, from county jail. Plaintiff's application for leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with this action.
Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a United States District Judge to this action.
Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be denied; and /////
2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any order adopting these findings and recommendations and be warned that failure to do so will result in the dismissal of this action.
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." 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). Dated: March 28, 2019.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE