Pierce v. Sacramento News and Review, et al.

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/16/16 RECOMMENDING that plaintiff's application to proceed in forma pauperis (ECF No. 2 ) be denied; and this action be dismissed without prejudice to re-filing upon pre-payment of the $400 filing fee. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Dillon, M)

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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-2691-JAM-EFB P

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

SACRAMENTO NEWS AND REVIEW,
et al.,
Defendants.

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Plaintiff Seavon Pierce is a state prisoner proceeding without counsel in a civil action. He

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seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons explained

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below, the court finds that plaintiff has not demonstrated that he is eligible to proceed in forma

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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
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. See (1) Pierce v. Gonzales, No. 1:10-cv-285-JLT

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(E.D. Cal. Dec. 3, 2012) (order dismissing action for failure to state a claim); (2) Pierce v.

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Gonzales, No. 13-15114 (9th Cir.) (March 28, 2013 order denying motion to proceed in forma

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pauperis on ground that appeal was frivolous, and May 7, 2013 order dismissing appeal for failure

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to prosecute after plaintiff failed to pay the filing fee)1; (3) Pierce v. Unknown, No. 1:15-cv-650-

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DAD-DLB (E.D. Cal. Dec. 1, 2015) (order dismissing action for failure to state a claim). See

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also Pierce v. Birotte, No. 2:15-cv-7552-VAP-CW (C.D. Cal. Oct. 4, 2015) (order designating

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plaintiff a three-strikes litigant for purposes of § 1915(g) and listing four additional “strikes”

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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 imminency 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 complains that various records have been

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“falsified.” His allegations do not demonstrate that he suffered from an ongoing or imminent

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danger of serious physical injury at the time he filed his complaint. Thus, the imminent danger

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exception does not apply. Plaintiff’s application for leave to proceed in forma pauperis must

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therefore be denied pursuant to § 1915(g).

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The dismissal of this appeal, though 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-00484AWI-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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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 No. 2) be denied; and

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2. This action be dismissed without prejudice to re-filing upon pre-payment of the $400

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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, any party may file written

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objections 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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 16, 2016.

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