Opinion
2:23-cv-01062-JDP (PC)
06-12-2023
THOMAS JOSEPH MELGER, Plaintiff, v. KAMALA HARRIS, et al., Defendants.
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, the complaint does not allege that plaintiff faced an imminent danger of serious physical injury at the time he filed the complaint. ECF No. 1 at 3-4 (alleging that he was denied the right to “hold a home” in Place County). 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 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.