Opinion
Case No. 3:20-cv-01010-YY
06-25-2020
MICHAEL SPENGLER, JR., Plaintiff, v. WELLS FARGO BANK N.A., et al., Defendants.
FINDINGS AND RECOMMENDATION
Plaintiff, an adult in custody at the Twin Towers Correctional Facility in Los Angeles, California, brings this civil action pro se. Currently before the court is plaintiff's Application to Proceed In Forma Pauperis (ECF No. 1). For the reasons that follow, plaintiff's Application should be DENIED.
A prisoner is prohibited from proceeding in a civil action without full prepayment of filing fees if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action in a court of the United States that was dismissed on the grounds that it was frivolous, malicious, or failed 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). Plaintiff, while incarcerated or detained, has had more than three prior actions dismissed as frivolous or for failure to state a claim in the United States District Court for the Eastern District of California. See Spengler v. Row, et al., Case No. CV 18-00695-DOC(SP), January 31, 2018, Order Re Request to Proceed Without Prepayment of Filing Fee, Docket No. 4; see also Spengler v. Spengler, Case No. 5:17-cv-1616-ODW(SPx), 2018 WL 4616258, at *2 (C.D. Cal. Sept. 24, 2018) (noting that over the past three years plaintiff had initiated twenty-nine cases and during this period, plaintiff's cases have been repeatedly dismissed as frivolous, resulting in four "strikes" under the PLRA). Moreover, in the instant action plaintiff does not allege that he is under imminent danger of serious physical injury. Accordingly, plaintiff is prohibited from proceeding with this action without full prepayment of the filing fee, and his application to proceed in forma pauperis should be DENIED.
RECOMMENDATION & SCHEDULING ORDER
Based on the foregoing, plaintiff's application to proceed in forma pauperis (ECF No. 1) should be DENIED.
Plaintiff has until July 27, 2020, to either pay the $400.00 civil filing fee or file objections. If plaintiff does not pay the filing fee, these Findings and Recommendations will be referred to a district judge on July 27, 2020, and will go under advisement on that date.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal filed pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of an order from the district judge.
IT IS SO ORDERED.
DATED this 25th day of June, 2020.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge