Jesse Youngblood v. Overley

Filing 4

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's Motion to Proceed In Forma Pauperis 2 be DENIED, pursuant to 28:1915(g); Plaintiff be ordered to pay the $400.00 initial filing fee in full to proceed with this action re 2 MOTION to PROCEED IN FORMA PAUPERIS filed by Jesse L Youngblood ; referred to Judge Drozd,signed by Magistrate Judge Barbara A. McAuliffe on 12/5/17. Objections to F&R due by 12/26/2017 (Martin-Gill, S)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 JESSE L. YOUNGBLOOD, 9 Plaintiff, 10 v. 11 Case No. 1:17-cv-01598-DAD-BAM (PC) FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS D. OVERLEY, (ECF No. 2) 12 Defendant. FOURTEEN-DAY DEADLINE 13 14 _____________________________________/ 15 16 I. Introduction 17 Plaintiff Jesse L. Youngblood, a state prisoner proceeding pro se, filed this civil rights 18 action pursuant to 42 U.S.C. § 1983 on December 1, 2017. The same day, Plaintiff filed a motion 19 to proceed in forma pauperis. (ECF No. 2.) Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 20 21 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, 22 while incarcerated or detained in any facility, brought an action or appeal in a court of the United 23 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 24 upon which relief may be granted, unless the prisoner is under imminent danger of serious 1 25 physical injury.” The determination of whether Plaintiff is under imminent danger of serious 26 1 Plaintiff has at least three dismissals which qualify as final strikes under section 1915(g). Silva v. Di Vittorio, 658 F.3d 1090, 1098-99 (9th Cir. 2011). The Court takes judicial notice of the following United 27 States District Court cases: Youngblood v. State of California, et al., 2:05-cv-0727-LKK-DAD (E.D. Cal.) 28 (dismissed for failure to state a claim on September 11, 2006); Youngblood v. State of California, et al., 4:11-cv-4064-PJH (N.D. Cal.) (dismissed for failure to state a claim on March 16, 2012); Youngblood v. 1 physical injury is made based on the conditions at the time the complaint is filed, and the 2 allegation of imminent danger must be plausible. Andrews v. Cervantes, 493 F.3d 1047, 1053-55 3 (9th Cir. 2007). 4 II. Discussion 5 Plaintiff brings suit against the warden of Corcoran State Prison (“CSP”), where he is 6 being held, the associate warden, John Does 1-100, and Jane Does 1-100. Plaintiff alleges that on 7 or about October 2017, he was transferred over to CSP as Level 3 custody, and was on lockdown 8 status. Plaintiff was subjected to a strip search, and after he was strip-searched, he was taken out to 9 the yard while Doe defendants searched his cell. All of his belongings were thrown everywhere, 10 and they did not leave a cell-search receipt. Prior to the search, Plaintiff had prepared boxes or 11 bags of property for storage, including legal property, and was doing so in compliance with 12 regulations. Plaintiff asserts that he has been adversely affected from this incident. 13 Here, the Court does not find that Plaintiff has alleged facts showing that he is in imminent 14 danger of serious physical injury at the time that his complaint was filed. Plaintiff’s allegations 15 concern losses or damages to his property, rather than any threat or danger to his person. 16 Therefore, the Court finds that Plaintiff has not met the imminent danger exception, and is 17 precluded by 28 U.S.C. § 1915(g) from proceeding in forma pauperis in this action. 18 III. Recommendation 19 1. 20 21 22 23 Plaintiff’s motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 U.S.C. § 1915(g); and 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this action. These Findings and Recommendations will be submitted to the United States District 24 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 25 Lamarque, et al., 4:12-cv-4423-PJH (N.D. Cal.) (dismissed for failure to state a claim and for frivolousness 26 on February 4, 2013); Youngblood v. Feather Falls Casino, 4:13-cv-128-PJH (N.D. Cal.) (dismissed for failure to state a claim and for frivolousness on February 28, 2013); Youngblood v. Evans, et al., 4:13-cv27 2097-PJH (N.D. Cal.) (dismissed for failure to state a claim and for frivolousness on May 14, 2013); Youngblood v. Warden, et al., 4:13-cv-4366-PJH (N.D. Cal.) (dismissed for failure to state a claim on 28 November 12, 2013); and Youngblood v. Clark, et al., 1:15-cv-01746-DAD-BAM (E.D. Cal.) (dismissed for failure to state a claim on August 15, 2017). 2 1 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 2 file written objections with the Court. The document should be captioned “Objections to 3 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that failure to file 4 objections within the specified time may result in the waiver of the “right to challenge the 5 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 6 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 10 IT IS SO ORDERED. Dated: /s/ Barbara December 5, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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