Gonzales-Turner v. Sandor et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 4/29/2015 recommending to revoke Plaintiff's in forma pauperis status and to require Plaintiff to pay the filing fee re 3 , 5 , 11 . Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 6/1/2015. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY RECARDO GONZALESTURNER,

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Plaintiff,
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v.

Case No. 1:15-cv-00131-LJO-JLT (PC)
FINDINGS AND RECOMMENDATIONS
TO REVOKE PLAINTIFF'S IN FORMA
PAUPERIS STATUS AND TO REQUIRE
PLAINTIFF TO PAY THE FILING FEE

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SANDOR, et al.,

(Docs. 3, 5, 11)

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Defendants.

30-DAY DEADLINE

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Plaintiff, Anthony Recardo Gonzales-Turner, is a state prisoner proceeding pro se and in

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forma pauperis in this civil rights action pursuant to 42 U.S.C. ' 1983. Plaintiff filed the

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Complaint in this action on January 26, 2015. On that same date, Plaintiff filed an application to

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proceed in forma pauperis, which was granted the next day. (Docs. 3, 5.)

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A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner

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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while

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incarcerated or detained in any facility, brought an action or appeal in a court of the United States

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that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon

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which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g).

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B. DISCUSSION

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The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

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873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of Turner v. Cates, et al., Case

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Number 2:11-cv-01744-CKD P. In that action, an order issued on August 22, 2011, denying

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Plaintiff’s application to proceed in forma pauperis as Plaintiff had at least three strikes1 under

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section 1915(g) prior to its filing and finding that Plaintiff had not shown that he was in imminent

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danger of serious physical injury at the time he filed suit which precluded him from proceeding in

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forma pauperis. Thus, Plaintiff is subject to 28 U.S.C. § 1915(g) and is precluded from

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proceeding in forma pauperis in this action unless at the time the Complaint was filed, he was

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under imminent danger of serious physical injury.

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The Court has reviewed Plaintiff's Complaint and finds that he does not meet the

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imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In

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this action, Plaintiff complains of events that occurred at three separate detention facilities: Deuel

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Vocational Institution (ADVI@) in Tracy, California (¶¶ 12-22); Pelican Bay State Prison (APBSP@)

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in Crescent City, California (¶¶ 21-42); and Corcoran State Prison ("CSP") in Corcoran,

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California (¶¶43-80). However, when Plaintiff filed this action, he was housed at Salinas Valley

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State Prison (ASVSP@) in Soledad, California. (See Doc. 1, p. 1.) The Complaint contains

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allegations regarding past retaliatory wrongs that occurred at DVI, PBSP, and CSP. Plaintiff does

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not state any allegations of wrongdoing at PVSP. Thus, Plaintiff's allegations do not show that he

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was in imminent danger of serious physical injury at PVSP at the time he filed suit, which

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precludes him from proceeding in forma pauperis in this action. Andrews v. Cervantes, 493 F.3d

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1047, 1056-57 (9th Cir. 2007).

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On April 20, 2015, Plaintiff filed a motion requesting the District Court's consideration

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and review of his Complaint. (Doc. 11.) In that motion, Plaintiff alleges that the Clerk of the

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The cases relied on in that action were Case Nos. CIV-S-08-2087 EFB P which was dismissed for failure to state a
claim upon which relief could be granted; the second was the appeal of that same case, Ninth Circuit Case No. 1115044 which summarily affirmed the district court's dismissal for failure to state a claim and on which mandate
issued on May 16,2 011; and the third was CIV-S-09-3326 FCD DAD P which was dismissed as duplicative of
another action Plaintiff had filed. The Court also notes that the Court dismissed another of Plaintiff’s cases, Turner v.
Gipson, et al., Case No. 1:11-cv-01395-GBC, on April 13, 2012 due to his failure to state a claim.

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Court has obstructed his "access to freely communicate with the court by motion practice to

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prosecute this action;" that too much money are being "extorted" from his prison account under

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the order granting his in forma pauperis status; that he intends to seek default judgment based on

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"the prejudices complained of . . . commercial crimes under admirality [sic] maritime laws and

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the prejudice impedes [his] court access to due process/equal protection clause of the 4th, 8th,

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9th, 10, 13th, and 14th Amends. to the U.S. Const.;" and that he "invokes his rights under the War

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Powers Act § 1933" requesting a hearing and review of his Complaint. (Id.) Revocation of

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Plaintiff's in forma pauperis status will resolve Plaintiff's protestation that a lien has been placed

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against his prison account for too high of a percentage of the filing fee and Plaintiff's request for a

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hearing and review of his Complaint should be denied as his case will be screened for cognizable

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claims after Plaintiff pays the filing fee in full.

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C. CONCLUSION and RECOMMENDATION

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Plaintiff had more than three strikes under 28 U.S.C. §1915(g) before he filed this action.

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His allegations do not establish that he was facing imminent danger of serious physical injury at

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the time the Complaint was filed -- when he was housed at PVSP. Thus, the Court recommends

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that Plaintiff's in forma pauperis status be revoked, that Plaintiff be ordered to pay the filing fee

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for this action in full, and that Plaintiff's motion for consideration and review of his Complaint be

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denied.2

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Accordingly, it is HEREBY RECOMMENDED that:

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Plaintiff's in forma pauperis be revoked and the order that granted it be stricken
from the record;

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Plaintiff be ordered to pay the $400.00 filing fee in full; and

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3.

Plaintiff's motion for consideration and review of his Complaint, filed April 20,

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2015 (Doc. 11), be denied.

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These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30

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Once Plaintiff pays the filing fee in full, the action will be placed in line to be screened for cognizable claims.

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days after being served with these Findings and Recommendations, the parties may file written

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objections with the Court. The document should be captioned "Objections to Magistrate Judge's

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Findings and Recommendations." Failure to file objections within the specified time may result

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in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing

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Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

April 29, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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