Wilson v. Tucci et al.

Filing 15

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 9/6/16 RECOMMENDING that plaintiff's motion to proceed in forma pauperis (Docs. 2 , 4 ) be denied, plaintiff be barred from proceeding in forma pauperis in this action under the three strikes provision of 28 U.S.C. § 1915 (g), all pending motions be denied as moot, and this case be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DAVID W. WILSON,

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No. 2:15-cv-2404-KJM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

NICOLE M. TUCCI, et al.,
Defendant.

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/

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Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant

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to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to proceed in forma

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pauperis (Docs. 2,4).

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The Prison Litigation Reform Act’s (PLRA) “three strikes” provision 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 . . . in a
court of the United States that was dismissed on the ground 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). Thus, when a prisoner plaintiff has had three or more prior actions

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dismissed for one of the reasons set forth in the statute, such “strikes” preclude the prisoner from
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proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas

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petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122

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(9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights

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action, the district court may conclude that it counts as a “strike.” See id. at n.12.

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The court has previously determined that plaintiff is barred from proceeding in

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forma pauperis pursuant to 28 U.S.C. § 1985(g). See Wilson v. Marin, et al., Case No. 2:14-cv-

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1829-WBS-EFB P (Doc. 6) (finding three or more cases had previously be dismissed as

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frivolous, malicious, or for failure to state a claim, including Wilson v. Schwarts, Case No. 2:05-

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cv-1649-GEB-CMK (Oct. 31, 2006 E. D. Cal.), Wilson v. Dovey, Case No. 2:06-cv-1032-FCD-

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EFB (Mar. 8, 2007 E.D. Cal.), and Wilson v. Dovey, Case No. 2:06-cv-2553-JKS-EFB (Mar. 11,

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2008 E.D. Cal.)); see also Wilson v. Hubbard, Case No. 2:07-cv-1558-WBS-GGH (Oct. 16, 2009

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E.D. Cal.).

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In addition, it does not appear that plaintiff was under imminent danger of serious

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physical injury when he filed the instant complaint. See 28 U.S.C. § 1915(g); Andrews v.

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Cervantes, 493 F.3d 1037, 1055 (9th Cir. 2007). In his complaint, plaintiff alleges the

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defendants are violating his Eighth Amendment rights by discriminating based on disability as to

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such privileges as when cells are unlocked, access to the dayroom, school, yard, church, phone

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calls, and showers, among others. He also appears to be challenging the inmate grievance

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process, and the processing of inmate grievances. However, nothing in the complaint indicates

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plaintiff is or was under imminent danger of serious physical injury. Thus, the imminent danger

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exception does not apply.

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As plaintiff has not paid the filing fee, and is not eligible to proceed in forma

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pauperis, this action shall be dismissed, without prejudice to re-filing upon prepayment of the

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filing fees. See Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998).

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Based on the foregoing, the undersigned recommends that plaintiff’s motion to

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proceed in forma pauperis (Docs. 2,4) be denied, plaintiff be barred from proceeding in forma
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pauperis in this action under the three strikes provision of 28 U.S.C. § 1915(g), all pending

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motions be denied as moot, and this case be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal.

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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: September 6, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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