Pierce v. FBI et al

Filing 7

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 4/11/2017 RECOMMENDING plaintiff's 2 application to proceed ifp be denied; and this action be dismissed without prejudice to re-filing upon pre-payment of the filing fees. Referred to Judge John A. Mendez; Objections to F&R due within 20 days. (Yin, K)

Download PDF
1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SEAVON PIERCE, 12 No. 2:16-cv-0202-JAM-CMK-P Plaintiff, 13 vs. 14 FBI, et al., 15 FINDINGS AND RECOMMENDATION Defendants. 16 17 / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant 18 to 42 U.S.C. § 1983. Pending before the court is plaintiff’s motion for leave to proceed in 19 forma pauperis (Doc. 2). 20 The Prison Litigation Reform Act’s (PLRA) “three strikes” provision provides: 21 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. 22 23 24 25 28 U.S.C. § 1915(g). Thus, when a prisoner plaintiff has had three or more prior actions 26 dismissed for one of the reasons set forth in the statute, such “strikes” preclude the prisoner from 1 1 proceeding in forma pauperis unless the imminent danger exception applies. Dismissed habeas 2 petitions do not count as “strikes” under § 1915(g). See Andrews v. King, 398 F.3d 1113, 1122 3 (9th Cir. 2005). Where, however, a dismissed habeas action was merely a disguised civil rights 4 action, the district court may conclude that it counts as a “strike.” See id. at n.12. Once it is 5 determined that the prisoner plaintiff has three or more actions dismissed as frivolous, malicious, 6 or for failure to state a claim, the prisoner is precluded from proceeding in forma pauperis in 7 another action unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C. 8 § 1915(g). To satisfy the exception, plaintiff must have alleged facts that demonstrate that he 9 was “under imminent danger” at the time of filing the complaint. Andrews v. Cervantes, 493 10 F.3d 1047, 1052-53 (9th Cir. 2007). “[T]he exception applies if the complaint makes a plausible 11 allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of 12 filing.” Id. at 1055. 13 The court has determined that plaintiff is barred from proceeding in forma 14 pauperis pursuant to 28 U.S.C. § 1985(g). See Pierce v. Sacramento New and Review, et.al., 15 Case No. 2:15-cv-2691 JAM KJN P, Pierce v. U.C. Berkeley School of Law, et al, Case No. 16 2:15-cv-2694 JAM KJN P. The undersigned agrees with the findings in plaintiff’s other cases. 17 In addition, it does not appear that plaintiff was under imminent danger of serious 18 physical injury when he filed the instant complaint. In his complaint, Plaintiff claims that he is 19 being denied access to public records. There are no allegations in his complaint that he is or was 20 in any imminent danger of serious physical injury at the time he filed his complaint. Thus, the 21 undersigned finds the imminent danger exception does not apply. 22 As plaintiff has not paid the filing fee, and is not eligible to proceed in forma 23 pauperis, this action shall be dismissed, without prejudice to re-filing upon prepayment of the 24 filing fees. See Tierney v. Kupers, 128 F.3d 1310 (9th Cir. 1998). 25 /// 26 /// 2 1 Based on the foregoing, the undersigned recommends that: 2 1. Plaintiff’s application for leave to proceed in forma pauperis (Doc. 2) be 4 2. This action be dismissed without prejudice to re-filing upon pre-payment 5 of the filing fees. 3 denied; and 6 These findings and recommendations are submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days 8 after being served with these findings and recommendations, any party may file written 9 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 10 Findings and Recommendations.” Failure to file objections within the specified time may waive 11 the right to appeal. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 14 15 DATED: April 11, 2017 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?