Rider v. Sherman et al

Filing 14

FINDINGS and RECOMMENDATIONS to Revoke Plaintiff's In Forma Pauperis Status re 2 , 8 , 9 , 10 , signed by Magistrate Judge Sheila K. Oberto on 5/8/18. Referred to Judge O'Neill. Objections to F&R Due Within 21-Days. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER SCOTT RIDER,

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Plaintiff,

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v.
SHERMAN, et al.,

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Defendants.

Case No. 1:18-cv-00208-LJO-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO REVOKE PLAINTIFF’S IN FORMA
PAUPERIS STATUS
(Docs. 2, 8, 9, 10)
TWENTY-ONE (21) DAY DEADLINE

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I.

INTRODUCTION
Plaintiff is a prisoner proceeding pro se pursuant to 42 U.S.C. § 1983 and has requested

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leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Because Plaintiff incurred

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three strikes prior to filing this action, on March 20, 2018, findings and recommendations issued

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to deny Plaintiff’s motions to proceed in forma pauperis. However, in his objections, Plaintiff

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stated that the conditions of which he complains in this action were not isolated, and that similar

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conditions occur with some frequency at the Substance Abuse Treatment Facility (“SATF”), in

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Corcoran, California. (Doc. 12.) This was accepted to meet the ongoing imminent danger

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exception to section 1915 and Plaintiff’s in forma pauperis application was granted. (Doc. 13,

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citing Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).)

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In reviewing the Complaint for screening, however, the Court has determined that the

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imminent danger exception to section 1915 does not apply because Plaintiff was not housed at

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SATF when he filed this action. Thus, the Court recommends that Plaintiff’s in forma pauperis

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status be revoked and this action be dismissed without prejudice to refiling upon prepayment of

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the filing fee.
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II.

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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

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

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

873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of three of Plaintiff’s prior lawsuits:
(1) Rider v. Hernandez, et al., CAED No. 1:07-cv-01862-LJO-SMS, dismissed for failure to state
a claim on February 22, 2008; (2) Rider v. Storey, CASD No. 3:09-cv-01979-JM-POR,

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dismissed for failure to state a claim on October 22, 2009; and (3) Rider v. Carter, et al., CASD

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No. 3:09-cv-02316-L-WMC, dismissed for failure to state a claim on December 4, 2009. These

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actions were dismissed several years before Plaintiff filed the present action on February 9, 2018.

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

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pauperis in this action unless, at the time the Complaint was filed, he was under imminent danger

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of serious physical injury.

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The circumstances Plaintiff alleges, being served food contaminated with fecal matter

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from the staging area for food before it is loaded into delivery trucks, which occurs with some

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frequency, (Docs. 1, 12), would satisfy the “ongoing danger” exception to the PLRA for in forma

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pauperis purposes. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). However,

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when Plaintiff filed this action, he was housed at R.J. Donovan R.J. Donovan Correctional

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Facility at Rock Mountain (“RJD”) in San Diego, California. (See Doc. 1, p. 1.) The Complaint

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contains allegations regarding incidents that occurred at SATF. Plaintiff does not state any

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allegations of similar wrongdoing at RJD and was not in imminent danger of serious physical

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injury at the time he filed suit. Andrews v. Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007).

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Thus, Plaintiff is precluded from proceeding in forma pauperis, and it is recommended that this
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action be dismissed without prejudice to refiling upon prepayment of the filing fee.
IV.

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Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s in forma
pauperis status be revoked and this action be dismissed without prejudice to refiling upon
prepayment of the filing fee.

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CONCLUSION and RECOMMENDATION

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
twenty-one (21) days of the date of service of these Findings and Recommendations, Plaintiff
may file written objections with the Court. The document should be captioned “Objections to
Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within
the specified time may result in the waiver of his rights on appeal. Wilkerson v. Wheeler, 772
F.3d 834, 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:

May 8, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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