(PC) Fields v. Samadani et al

Filing 9

ORDER DIRECTING Clerk of the Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Deny In Forma Pauperis Status re: 1 Complaint, signed by Magistrate Judge Sheila K. Oberto on 8/28/2024. Referred to Judge Sherriff; Objections to F&R due within 14 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCUS BRENT FIELDS,

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Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS TO
DENY IN FORMA PAUPERIS STATUS
14-DAY OBJECTION PERIOD

SAMAN SAMADANI, et al.,

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Case No.: 1:24-cv-01019-SKO

Clerk of the Court to Assign District Judge

Defendants.

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Plaintiff Marcus Brent Fields is proceeding pro se in this civil rights action pursuant to 42
U.S.C. section 1983.

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I.

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Plaintiff initiated this action by filing a complaint in the United States District Court for

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the Central District of California on August 16, 2024. (Doc. 1.) Plaintiff also filed a motion for

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the appointment of counsel. (Doc. 2.)

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INTRODUCTION

On August 19, 2024, the Central District issued a notice to Plaintiff advising him of a

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filing discrepancy as he had not paid the $405 filing fee. (Doc. 3.) Plaintiff was advised that if he

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could not pay the entire filing fee, he must complete and return a request to proceed without

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prepayment of filing fees form within thirty days. (Id.)

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On August 26, 2024, United States District Judge John W. Holcomb issued an Order
transferring the action from the Central District to this Court. (Doc. 5.) Judge Holcomb found

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venue is proper in the Eastern District where the events giving rise to Plaintiff’s claims occurred

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at Kern Valley State Prison in Delano, California. (Id.) For the reasons discussed below, the

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Courts finds that Plaintiff need not submit an application to proceed in forma pauperis as he is

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precluded from proceeding in forma pauperis in this action.

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II.

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

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28 U.S.C. section 1915 governs IFP proceedings. The statute provides that “[i]n no event

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

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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of

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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state

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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious

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physical injury.” 28 U.S.C. § 1915(g).
In determining whether a case counts as a “strike,” “the reviewing court looks to the

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dismissing court’s action and the reasons underlying it…. This means that the procedural

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mechanism or Rule by which the dismissal is accomplished, while informative, is not

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dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted).

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III.

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The Court takes judicial notice1 of prior lawsuits filed by Plaintiff in the United States

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DISCUSSION

District Court for Southern District of California and the Ninth Circuit Court of Appeals:

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1. Fields v. Newsom, No. 3:22-00044-LL-MDD (S.D. Cal.) (dismissed for failure to state a

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claim and as frivolous on May 16, 2022);

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2. Fields v. Bouria, No. 3:22-cv-01656-JLS-MSB (S.D. Cal.) (dismissed for failure to state a
claim and as frivolous on November 18, 2022);2

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The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980).
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At least three subsequent actions filed by Plaintiff in the Southern District have been dismissed after
Plaintiff failed to pay the filing fee as ordered by that Court: Fields v. Newsome, No. 3:23-cv-01416WQH-MSB; Fields v. Macomber, No. 3:23-cv-01575-DMS-JLB; and Fields v. Macomber, No. 3:23-cv02107-DAB-BLM. Additionally, an action filed by Plaintiff in the Central District of California has also
been dismissed for his failure to pay the filing fee as ordered: Fields v. Macomber, No. 2:24-cv-00207JWH-SHK.

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3. Fields v. Newsom, No. 22-55519 (9th Cir.) (appeal dismissed as frivolous on November
17, 2022); and
4. Fields v. Bouria, No. 22-56171 (9th Cir.) (appeal dismissed as frivolous on May 18, 2023)
A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g).

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Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). An appeal

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dismissed as frivolous also constitutes a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th

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Cir. 2016). Because Plaintiff has incurred at least three prior “strikes, and each was dismissed

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prior to the commencement of the current action on August 16, 2024, Plaintiff is subject to the

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section 1915(g) bar. Moreover, he is precluded from proceeding IFP in this action unless, at the

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time he filed his complaint, he was under imminent danger of serious physical injury. See

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Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).

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The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations do

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not meet the imminent danger exception. Plaintiff alleges his constitutional rights were violated

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when his C-PAP device was confiscated on October 25, 2023. (Doc. 1.) Although Plaintiff

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complains the lack of his C-PAP device caused him “to suffer for months on end,” that his asthma

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“put [him] in distress,” and that he would wake in the middle of the night choking and concerned

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about his existing heart condition, these allegations are insufficient to demonstrate an imminent

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danger of serious physical injury. A review of documents attached as exhibits to Plaintiff’s

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complaint support this finding. (Id. at 15, 24 [referencing medical records].)

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Plaintiff lost the use of his C-PAP device on October 25, 2023, but waited more than nine

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months to file his complaint, suggesting any danger is not imminent. The “imminent danger”

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exception cannot be triggered solely by complaints of past harm. See Andrews v. Cervantes, 493

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F.3d 1047, 1053 (9th Cir. 2007) (“The exception's use of the present tense, combined with its

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concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that the exception

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applies if the danger existed at the time the prisoner filed the complaint”); Rogers v. Sterling, No.

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2:20-cv-1508-TMC, 2021 WL 195298, at *1 (D.S.C. Jan. 20, 2021) (adopting recommendations

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to deny IFP where plaintiff “failed to make a showing of ‘imminent danger’ as he had been

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without a CPAP machine for a substantial period of time since being diagnosed with sleep apnea
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but had not suffered any serious medical problems as a result”); Blackman v. Mjening, No. 1:16-

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cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of

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serious physical injury must be a real, present threat, not merely speculative or hypothetical”);

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Dickson v. United States, No. 5:16cv215/MP/CJK, 2016 WL 6078330, at *2 (N.D. Fla. Aug. 8,

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2016) (recommending IFP be denied because “allegations concerning denial of a ‘sleep study’

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and CPAP machine, delay in receiving bottom dentures, lack of annual eye examinations and

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denial of a paying prison job, even viewed collectively, do not arguably show plaintiff is under

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imminent danger of serious physical injury”), recommendations adopted October 14, 2016, 2016

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WL 6070074; Staley v. Smalley, No. 9:07-cv-1553-PMD, 2007 WL 2283647, at *2 (D.S.C. Aug.

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6, 2007) (finding that plaintiff failed to show his medical condition placed him in imminent

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danger of physical injury where he had been without medication for a sustained period of time);

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see also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (the “imminent danger” exception is

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available “for genuine emergencies,” where “time is pressing” and “a threat ... is real and

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proximate”).

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In sum, this Court finds Plaintiff has suffered three or more strikes and was not under

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imminent danger of serious physical injury when he filed the complaint in this action. Therefore,

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Plaintiff should be precluded from proceeding in forma pauperis in this action. Andrews, 493

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F.3d at 1052-53.

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IV.

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For the foregoing reasons, the Court DIRECTS the Clerk of the Court to assign a district

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ORDER AND RECOMMENDATIONS

judge to this action and RECOMMENDS that:
1. Plaintiff be precluded from proceeding in forma pauperis in this action in accordance
with 28 U.S.C. section 1915(g); and

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2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days.

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

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Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of

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service of these Findings and Recommendations, a party may file written objections with the

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Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff’s failure to file objections within the specified time may result in

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waiver of his 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:

/s/ Sheila K. Oberto

August 28, 2024

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UNITED STATES MAGISTRATE JUDGE

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