Blackman v. Newsome et al
Filing
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ORDER DIRECTING Clerk of the Court to Assign a District Judge; FINDINGS and RECOMMENDATIONS to Deny 2 Plaintiff's Motion to Proceed In Forma Pauperis and Require Plaintiff to Pay the $405.00 Filing Fee in Full, signed by Magistrate Judge Christopher D. Baker on 10/23/2024. Referred to Judge Thurston; Objections to F&R due within fourteen (14) days. (Rivera, O)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TONY BLACKMAN,
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Plaintiff,
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v.
GAVIN NEWSOME, et al.,
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Defendants.
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Case No. 1:24-cv-01267-CDB (PC)
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S MOTION TO
PROCEED IN FORMA PAUPERIS AND
REQUIRE PLAINTIFF TO PAY THE
$405.00 FILING FEE IN FULL
(Doc. 2)
FOURTEEN (14) DAY DEADLINE
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Clerk of the Court to Assign a District Judge
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I.
BACKGROUND
Plaintiff Tony Blackman is a state prisoner proceeding pro se in this civil rights action
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filed under 42 U.S.C. § 1983. Plaintiff filed a complaint and a motion to proceed in forma
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pauperis on October 17, 2024. (Docs. 1, 2.)
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Upon review of Plaintiff’s prisoner litigation history and his complaint, the Court finds
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that Plaintiff had at least three “strikes” prior to filing the action and that Plaintiff was not in
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imminent danger of serious physical harm at the time he filed the action. Therefore, the Court
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recommends that Plaintiff’s motion to proceed in forma pauperis (“IFP”) (Doc. 2) be denied
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under 28 U.S.C. § 1915(g) and that Plaintiff be required to pay the $405.00 filing fee in full to
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proceed with the action.
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II.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g)
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28 U.S.C. § 1915 governs proceedings in forma pauperis (“IFP”). The statute provides:
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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.
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28 U.S.C. § 1915(g). This section is commonly referred to as the “three strikes” provision.
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Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). “Pursuant to § 1915(g), a prisoner
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with three strikes or more cannot proceed IFP.” Id.; see Andrews v. Cervantes, 493 F.3d 1047,
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1052 (9th Cir. 2007) (“Cervantes”) (holding that “[p]risoners who have repeatedly brought
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unsuccessful suits may entirely be barred from IFP status under the three strikes rule”). The
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objective of the Prison Litigation Reform Act is to further “the congressional goal of reducing
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frivolous prisoner litigation in federal court.” Tierney v. Kupers, 128 F.3d 1310, 1312 (9th Cir.
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1997).
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Not all dismissed cases qualify as a strike under section 1915(g). King, 398 F.3d at 1121.
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In determining whether a case counts as a “strike,” “the reviewing court looks to the dismissing
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court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir.
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2013). “Strikes are prior cases or appeals, brought while the plaintiff was a prisoner, which were
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dismissed on the ground that they were frivolous, malicious, or failed to state a claim.” Andrews,
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398 F.3d at 1116 n.1 (internal quotations omitted).
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Once a prisoner has accumulated three strikes, he is prohibited by 28 U.S.C. § 1915(g)
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from pursuing any other IFP action in federal court unless he can show he is facing “imminent
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danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1051–52
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(noting section 1915(g)’s exception for IFP complaints that “make[] a plausible allegation that
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the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing”). To meet
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this burden, Plaintiff must provide “specific fact allegations of ongoing serious physical injury,
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or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.”
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Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “[V]ague and utterly conclusory
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assertions” of imminent danger are insufficient. Herbaugh v. San Diego Sheriff’s Dep’t, No.
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3:18-cv-01899-JLS-NLS, 2018 WL 5024802, at *2 (S.D. Cal. Oct. 17, 2018) (quoting White v.
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Colorado, 157 F.3d 1226, 1231–32 (10th Cir. 1998)). 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.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002); see Blackman v. Mjening,
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1:16-cv-01421-LJO-GSA (PC), 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent
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danger of serious physical injury must be a real, present threat, not merely speculative or
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hypothetical.”).
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Additionally, to qualify for the imminent danger exception, the plaintiff must show a
nexus between the imminent danger alleged and the claims asserted.
In deciding whether such a nexus exists, [the court] will consider (1) whether the
imminent danger of serious physical injury that a three-strikes litigant alleges is
fairly traceable to unlawful conduct asserted in the complaint and (2) whether a
favorable judicial outcome would redress that injury. The three-strikes litigant
must meet both requirements in order to proceed [in forma pauperis].
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Stine v. Fed. Bureau of Prisons, No. 1:13-cv-1883-AWI-MJS, 2015 WL 5255377, at *3 (E.D.
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Cal. Sept. 9, 2015) (quoting Pettus v. Morgenthau, 554 F.3d 293, 298-99 (2d Cir. 2009)).
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Because Plaintiff is pro se, in making the imminent danger determination the Court must
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liberally construe Plaintiff’s allegations. Cervantes, 493 F.3d at 1055 (9th Cir. 2007).
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Upon a finding that the plaintiff is barred by the three strikes provision of 28 U.S.C. §
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1915(g), the proper procedure is to dismiss the case without prejudice because the filing fee is
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required when the action is initiated. Campbell v. Vance, No. CIV S-05-1163 RRB, 2005 WL
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3288400, at *1 (E.D. Cal. Nov. 30, 2005) (citing Dupree v. Palmer, 284 F.3d 1234, 1236 (11th
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Cir. 2002)). A plaintiff may still pursue his claims if he pays the civil and administrative filing
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fees required by 28 U.S.C. § 1914(a).
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III.
DISCUSSION
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A.
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The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118,
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Three Strikes Provision
119 (9th Cir. 1980). Here, the Court takes judicial notice of the following cases filed by Plaintiff
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and dismissed for failure to state a claim, each of which counts as a “strike”:1
(1)
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on March 12, 2001 for failure to state a claim);
(2)
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(3)
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(5)
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Blackman v. Mazariegos, No. 3:07-cv-2021-SI (N.D. Cal.) (case dismissed on
September 5, 2007 for failure to state a claim); and
(7)
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Blackman v. Mazariegos, No. 3:06-cv-7625-SI (N.D. Cal.) (case dismissed on
September 4, 2007 for failure to state a claim);
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Blackman v. Taxdhal, No. 1:04-cv-06389-AWI-NEW (E.D. Cal.) (case dismissed
on May 18, 2007 for failure to state a claim);
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Blackman v. Variz, No. 3:06-cv-6398-SI (N.D. Cal.) (case dismissed on
December 18, 2006 for failure to state a claim);
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Blackman v. Medina, No. 3:05-cv-05390-SI (N.D. Cal.) (case dismissed on March
13, 2006 for failure to state a claim);
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Blackman v. Hartwell, No. 1:99-cv-5822-REC-HGB (E.D. Cal.) (case dismissed
Blackman v. Evans, No. 1:06-cv-00081-GSA-PC (E.D. Cal.) (case dismissed on
February 3, 2009 for failure to state a claim).
Based on the foregoing, the Court finds that Plaintiff had at least three “strikes” prior to
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filing this action. Plaintiff is therefore subject to the section 1915(g) bar, and he is precluded
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from proceeding IFP in this action unless, at the time he filed his complaint, he was under
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imminent danger of serious physical injury. See Cervantes, 493 F.3d at 1052–53.
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B.
Imminent Threat Exception
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The section 1915(g) exception applies if the complaint makes a plausible allegation that
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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C.
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§ 1915(g); Cervantes, 493 F.3d at 1055. Plaintiff’s complaint (Doc. 1) makes no such showing.
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The Court has reviewed Plaintiff’s complaint for this action and finds that Plaintiff
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does not meet the imminent danger exception. See Cervantes, 493 F.3d at 1053. In the complaint,
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to the extent it is comprehensible, Plaintiff alleges that Defendants rejected his appeals, denied
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him access to the law library, retaliated against Plaintiff and involuntarily transferred him to a
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This list is non-exhaustive.
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different facility, and falsely imprisoned him. (Doc. 1 at 5-8). The complaint is devoid of any
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showing that Plaintiff was under imminent danger of serious physical injury at the time he filed
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the complaint. Plaintiff’s application for leave to proceed in forma pauperis must therefore be
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denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed
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with this action.
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III.
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CONCLUSION AND RECOMMENDATION
Plaintiff is a “three-striker” and does not appear to have been in imminent danger when
he filed this action.
Accordingly, the Clerk of the Court is DIRECTED to randomly assign a U.S. district
judge to this action.
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Further, it is RECOMMENDED that:
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Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be denied; and
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2.
Plaintiff be ordered to pay the $405.00 filing fee in full if he wants to proceed
with this action.2
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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 the provisions of 28 U.S.C. § 636(b)(l). Within 14 days
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after being served with a copy of these Findings and Recommendations, a party may file written
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objections with the Court. Local Rule 304(b). The document should be captioned, “Objections to
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Magistrate Judge’s Findings and Recommendations” and shall not exceed 15 pages without
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leave of Court and good cause shown. The Court will not consider exhibits attached to the
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Objections. To the extent a party wishes to refer to any exhibit(s), the party should reference the
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exhibit in the record by its CM/ECF document and page number, when possible, or otherwise
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reference the exhibit with specificity. Any pages filed in excess of the 15-page limitation may
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be disregarded by the District Judge when reviewing these Findings and Recommendations
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This Court has denied Plaintiff’s IFP status in numerous other cases. See, e.g., Blackman v.
Pollard, No. 2:21-cv-0164-JAM-KJN (E.D. Cal. June 2, 2021); Blackman v. Dixon, 2:18-cv-0079-KJMAC (E.D. Cal. Aug. 1, 2019); Blackman v. Skelton, No. 2:18-cv-3273-MCE-EFB (E.D. Cal. June 17,
2019); Blackman v. Voong, No. 2:18-cv-0216-TLN-AC (E.D. Cal. Mar. 16, 2018). Typically, in such
cases, the Court ordered Plaintiff to pay the filing fee and dismissed the action for Plaintiff’s failure to
comply and pay the fee.
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under 28 U.S.C. § 636(b)(l)(C). A party’s failure to file any objections within the specified time
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may result in the waiver of certain rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839
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(9th Cir. 2014).
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IT IS SO ORDERED.
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Dated:
October 23, 2024
___________________
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UNITED STATES MAGISTRATE JUDGE
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