Opinion
No. CIV S-11-2237 JAM EFB P
01-18-2012
MARCELLUS ALEXANDER GREENE, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, Defendant.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner 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). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).
For the reasons explained below, the court finds that plaintiff has not demonstrated 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). It appears that on at least three prior occasions, plaintiff brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Greene v. Reyes, No. 2:00-cv-0196 LKK DAD (E.D. Cal. June 7, 2010) (order dismissing case for failure to state a claim); Greene v. State of California, No. 2:02-cv-2398 FCD KJM (E.D. Cal. July 14, 2003) (order dismissing case as frivolous); Greene v. CDCR, No. 2:04-cv2383 FCD DAD (E.D. Cal. Jan. 24, 2006) (order dismissing case for failure to state a claim).
A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
Further, it does not appear that plaintiff was under imminent threat of serious physical injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. Cal. 2007). The complaint includes a disjointed history of plaintiff's alleged experiences at various California prisons, including a beating by a correctional officer, various sexual assaults, a false accusation of attempting to escape, and having his mail intercepted. He also disputes the validity of an apparent rape conviction, and seeks damages for alleged harassment. See Dckt. No. 1. Plaintiff's allegations do not demonstrate that he suffered from imminent danger of serious physical injury at the time he filed his complaint. Thus, the imminent danger exception does not apply.
Accordingly, it is hereby RECOMMENDED that plaintiff's applications to proceed in forma pauperis (Dckt. Nos. 7, 9) be denied, that plaintiff be directed to pay the $350 filing fee within 30 days, and that plaintiff be warned that his failure to do so will result in dismissal of this action. See 28 U.S.C. § 1914(a).
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)(l). 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).
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EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE