Hill v. Katavich et al

Filing 3

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jennifer L. Thurston on 4/29/2015 recommending to deny 2 MOTION to PROCEED IN FORMA PAUPERIS. 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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TONY L. HILL,
Plaintiff,

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Case No. 1:15-cv-00631-JLT (PC)

v.
CDCR, et al.,

(Doc. 2)
Defendants.

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FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF'S REQUEST TO
PROCEED IN FORMA PAUPERIS

30-DAY DEADLINE

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Plaintiff, Tony L. Hill, is a state prisoner proceeding pro se in this civil rights action

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pursuant to 42 U.S.C. ' 1983. Plaintiff filed the Complaint in this action on April 21. 2015.

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that same date, Plaintiff filed an application to proceed in forma pauperis, which is pending

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before the Court.

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A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

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Section 1915 of Title 28 of the United States Code governs proceedings in forma pauperis.

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"In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or

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more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in

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a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or

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fails to state a claim upon which relief may be granted, unless the prisoner is under imminent

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danger of serious physical 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 Hill v. White, et al., Case Number

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1:13-cv-01275-AWI-DLB (PC). In that action, an order issued denying Plaintiff’s application to

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proceed in forma pauperis as Plaintiff had four strikes1 under section 1915(g) prior to its filing

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and finding that Plaintiff had not shown that he was in imminent danger of serious physical injury

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at the time he filed suit which precluded him from proceeding in forma pauperis. Thus, Plaintiff

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is subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in forma pauperis in this

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action unless at the time the Complaint was filed, he was under imminent danger of serious

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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).

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Plaintiff’s Complaint arises from an alleged false rules violation report that was filed against him

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at Wasco State Prison in April of 2013 which was dismissed. Subsequently, Plaintiff alleges a

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series of events by the Defendants involved in that false RVR and adverse events that occurred

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after he was transferred to the Secured Housing Unit at Corcoran State Prison. Plaintiff alleges

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events that range from tampering of his inmate appeals (Doc. 1, pp. 5-6), to being denied access

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to the canteen and store (id., at p. 7); being given food trays with flies on them (id.); having his

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cell door repeatedly banged on by a correctional officer (id.); having $40 that his brother sent to

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him stolen (id., at 7-8); being held at a Level IV prison when he should be at a Level III prison

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(id., at pp. 7, 9); being denied access to the law library so he couldn't electronically file a

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complaint (id., at p. 11); notices not being posted as to when the law library would be closed (id.,

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at pp. 12-13); and having his inmate appeals wrongly handled/denied (id., at p. 14). None of

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these allegations even suggest Plaintiff is at risk of imminent danger at the time he filed the

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Complaint.

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Plaintiff therefore fails to allege specific facts in the Complaint indicating that he was

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The Court takes judicial notice of the following cases which count as strikes: 1) Hill v. Williams, et al., 2:98-cv07173-LGB-CT (C.D. Cal.) (dismissed September 15, 1998 for failure to state a claim); 2) Hill v. Wallace, et al.,
2:99-cv-06406-ABC-CT (C.D. Cal.) (dismissed July 7, 1999 for failure to state a claim; (3) Hill v. Torrance Police
Dept., et al., 2:11-cv-08794-UA-CW (C.D. Cal.) (dismissed July 20, 2012 for failure to state a claim); and (4) Hill v.
Horton, et al., 2:13-cv-00805-UA-CW (C.D. Cal.) (dismissed February 28, 2013 for failure to state a claim).

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under imminent danger at the time he filed the Complaint. Based on the foregoing, the Court

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finds that Plaintiff fails to allege an imminent danger of serious physical injury necessary to

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bypass § 1915(g)’s restriction on filing suit without prepayment of the filing fee.

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Accordingly, Plaintiff may not proceed in forma pauperis in this action and must submit

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the appropriate filing fee in order to proceed with this action.

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C. CONCLUSION and RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to

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proceed in forma pauperis, filed April 21. 2015 (Doc. 2), be denied and that Plaintiff be ordered

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to pay the filing fee in full.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30

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days after being served with these Findings and Recommendations, Plaintiff 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.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834,

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839 (9th Cir. 2014) (citing 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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