Pierce v. Sacramento Business Journal, et al.
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/19/2016 RECOMMENDING that plaintiff's 2 , 12 application to proceed in forma pauperis be denied; and this action be dismissed without prejudice to re-filing upon pre-payment of the $400.00 fee. Referred to Judge Garland E. Burrell, Jr.; 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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SEAVON PIERCE,
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No. 2:15-cv-2690 GEB KJN P
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
SACRAMENTO BUSINESS JOURNAL,
et al.,
Defendants.
Plaintiff Seavon Pierce is a state prisoner, proceeding without counsel, in a civil action.
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He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). On March 17, 2016,
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plaintiff was directed to pay the appropriate filing fee within 21 days because he had filed three
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prior lawsuits that were dismissed on the grounds that they were frivolous or malicious or failed
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to state a claim upon which relief may be granted, in violation of 28 U.S.C. § 1915. (ECF No. 9.)
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On April 11, 2015, plaintiff filed objections to the order, but did not pay the filing fee.
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For the reasons explained below, the court finds that plaintiff has not demonstrated he is
eligible to proceed in forma pauperis.
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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
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serious physical injury.
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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has
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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to
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state a claim upon which relief may be granted:
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(1) Pierce v. California State, CV 12-9211 UA (CW) (C.D. Cal.), November 20, 2012
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(dismissed as frivolous, malicious or fails to state a claim upon which relief may be granted) (Id.,
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ECF No. 5);
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(2) Pierce v. Gonzales, 1:10-cv-0285 JLT (E.D. Cal.), December 3, 2012 (dismissed for
failure to state a claim) (Id., ECF No. 27);
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(3) Pierce v. Warden of Lancaster, CV 13-1939 UA (CW), March 28, 2013 (dismissed as
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frivolous, malicious or fails to state a claim upon which relief may be granted) (Id., ECF No. 2);
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(4) Pierce v. Gonzales, No. 13-15114 (9th Cir.) (March 28, 2013 order denying motion to
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proceed in forma pauperis on ground that appeal was frivolous, and May 7, 2013 order dismissing
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appeal for failure to prosecute after plaintiff failed to pay the filing fee)1;
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(5) Pierce v. Lancaster State Prison, 2:13-cv-8126 (C.D. Cal.), December 3, 2013
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(dismissed as frivolous, malicious or fails to state a claim upon which relief may be granted) (Id.,
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ECF No. 6);
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(6) Pierce v. Unknown, 1:15-cv-0650 DAD DLB (E.D. Cal.), December 1, 2015
(dismissed for failure to state a claim) (Id., ECF No. 38); and
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(7) Pierce v. Birotte, No. 2:15-cv-7552 VAP CW (C.D. Cal. Oct. 4, 2015) (order
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designating plaintiff a three-strikes litigant for purposes of § 1915(g) and listing four additional
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The dismissal of this appeal, styled as one for failure to prosecute, also qualifies as a
strike. See O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (complaint is “dismissed” for
purposes of § 1915(g) even if dismissal is styled as denial of application to file the action without
prepayment of the full filing fee); see also, e.g., Lamon v. Junious, No. 1:09-cv-00484 AWI SAB,
2014 U.S. Dist. LEXIS 9778, at *9-10 (E.D. Cal. Jan. 27, 2014) (dismissal of appeal for failure to
prosecute counted as “strike” where underlying ground for dismissal was that appeal was
frivolous); Thomas v. Beutler, No. 2:10-cv-01300 MCE CKD P, 2012 U.S. Dist. LEXIS 159943,
at *5-6 (E.D. Cal. Nov. 6, 2012) (same, and citing similar cases); Braley v. Wasco State Prison,
No. 1:07-cv-01423 AWI BAM, 2012 U.S. Dist. LEXIS 133285 (E.D. Cal. Sept. 14, 2012)
(“Plaintiff became subject to section 1915(g) . . . when the appeal of the dismissal of his third
action as frivolous was dismissed for failure to prosecute”).
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“strikes” incurred by plaintiff).
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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). For the exception to
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apply, the court must look to the conditions the “prisoner faced at the time the complaint was
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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner
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allege “an ongoing danger” to satisfy the imminence requirement). Courts need “not make an
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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.
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In the complaint (ECF No. 1), plaintiff alleges no facts suggesting that he is under
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imminent danger of serious physical injury. In addition, plaintiff alleged no facts addressing this
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exception in his April 11, 2016 filing. Thus, the imminent danger exception does not apply.
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Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied pursuant to
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§ 1915(g).
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Accordingly, because plaintiff has not paid the filing fee and cannot proceed in forma
pauperis, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s application to proceed in forma pauperis (ECF Nos. 2, 12) be denied; and
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2. This action be dismissed without prejudice to re-filing upon pre-payment of the
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$400.00 filing fee.
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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: May 19, 2016
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/cw/pier2690.1915g.fpf
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