Opinion
1:20-cv-01131-JDP
09-01-2020
EDWARD THOMAS, Plaintiff, v. C. PFEIFFER, et al., Defendants.
FINDINGS AND RECOMMENDATIONS TO DENY MOTIONS TO PROCEED IN FORMA PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE DAYS
ECF Nos. 2, 4
OBJECTIONS DUE WITHIN 14 DAYS
ORDER TO ASSIGN CASE TO DISTRICT JUDGE
Plaintiff Edward Thomas is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. On August 14, 2020, plaintiff filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. Plaintiff filed a duplicative application again on August 31, 2020. ECF No. 4.
The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 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). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief maybe granted. Plaintiff has been informed in at least one other case that he is subject to § 1915(g).
The cases include Thomas v. Terhune, No. 1:03-cv-5467 (E.D. Cal. 2006); Thomas v. Terhune, No. 06-15901 (9th Cir. 2006); and Thomas v. Lamarque, No. 07-16437 (9th Cir. 2009).
See Thomas v. Felker, No. 2:09-cv-2486, 2012 U.S. Dist. LEXIS 80880 (E.D. Cal. June 8, 2012) (finding plaintiff to be a three-striker under the PLRA).
Plaintiff has not satisfied the imminent danger exception to § 1915(g). That exception applies if the “the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury' at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Plaintiff's complaint contains no such plausible allegation. Plaintiff claims that false incident reports have been filed against him. See ECF No. 1 at 2-3. Plaintiff also complains about a past shoulder injury while he was handcuffed. See Id. at 9-11. Because plaintiff challenges past misconduct, it does not appear that plaintiff faces an imminent danger.
Accordingly, plaintiff's in forma pauperis application should be denied, and he should pay the filing fee in full, since he has accrued three or more strikes and was not under imminent danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g).
Order
The clerk of court is directed to assign this case to a district judge who will review these findings and recommendations.
Findings and Recommendations
Based on the foregoing, it is hereby recommended that:
1. plaintiff's in forma pauperis applications, ECF Nos. 2, 4, be DENIED;
2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations; and
3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations, all pending motions be terminated, and this action be dismissed without prejudice.
These findings and recommendations are submitted to a district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within fourteen days of the service of the findings and recommendations, the parties may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C).
IT IS SO ORDERED.