Blackman v. Stainer et al

Filing 9

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 2/24/2015 ORDERING the Clerk to assign a district judge to this action; AND RECOMMENDING that plaintiff's 8 application to proceed ifp be denied, and plaintiff be ordered to pay the filing fee within 30 days of the adoption of these findings and recommendations. Assigned and referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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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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No. 2:14-cv-2958 KJN P

Plaintiff,

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v.

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STAINER, et al.,

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ORDER AND FINDINGS AND
RECOMMENDATIONS
Defendants.

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Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant

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to 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For

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the reasons discussed below, the undersigned recommends that plaintiff’s request to proceed in

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forma pauperis be denied.
A prisoner may not proceed in forma pauperis:

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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).

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Court records reflect that on at least three prior occasions, plaintiff has brought actions

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while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon

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which relief may be granted. See: 1) Blackman v. Taxdahl, No. 1:04-cv-6389 AWI LJO (May

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18, 2007 E.D. Cal.) (order dismissing action for failure to state a claim); 2) Blackman v. Evans,

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No. 1:06-cv-0081 GSA (Feb. 3, 2009 E.D. Cal.) (order dismissing action for failure to state a

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claim); and 3) Blackman v. Medina, 3: 05-cv-5390 SI (Mar. 13, 2006 N.D. Cal.) (order

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dismissing action for failure to state a claim). See also Blackman v. Hedgpath, 1:10-cv-1393 LJO

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MJS (Aug. 11, 2010 E.D. Cal.) (order designating plaintiff a three strikes litigant for purposes of

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section 1915(g).)

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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); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Although somewhat

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difficult to understand, it appears that plaintiff is claiming that defendants interfered with his

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ability to file administrative grievances as well as with his ability to challenge his criminal

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convictions. These claims do not suggest that plaintiff faced imminent danger of serious physical

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injury at the time he filed the complaint. Accordingly, the undersigned recommends that

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plaintiff’s application to proceed in forma pauperis be denied.

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Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall assign a district
judge to this action; and

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IT IS HEREBY RECOMMENDED that plaintiff’s application to proceed in forma

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pauperis (ECF No. 8) be denied; and plaintiff be ordered to pay the filing fee within thirty days of

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the adoption of these findings and recommendations.

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These findings and recommendations are submitted to the United States District Judge

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

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that

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failure to file objections within the specified time may waive the right to appeal the District
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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 24, 2015

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