Pierce v. California Department of Correcitons et al

Filing 6

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)

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IN THE 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. 2:16-cv-0574-JAM-CMK-P

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

CALIFORNIA DEPARTMENT OF
CORRECTIONS, et al.,

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Defendants.
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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

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forma pauperis (Doc. 2).

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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. Once it is

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determined that the prisoner plaintiff has three or more actions dismissed as frivolous, malicious,

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or for failure to state a claim, the prisoner is precluded from proceeding in forma pauperis in

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another action unless plaintiff is “under imminent danger of serious physical injury.” 28 U.S.C.

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§ 1915(g). To satisfy the exception, plaintiff must have alleged facts that demonstrate that he

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was “under imminent danger” at the time of filing the complaint. Andrews v. Cervantes, 493

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F.3d 1047, 1052-53 (9th Cir. 2007). “[T]he exception applies if the complaint makes a plausible

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allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of

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filing.” Id. at 1055.

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

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pauperis pursuant to 28 U.S.C. § 1985(g). See Pierce v. Sacramento New and Review, et.al.,

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Case No. 2:15-cv-2691 JAM KJN P, Pierce v. U.C. Berkeley School of Law, et al, Case No.

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2:15-cv-2694 JAM KJN P. The undersigned agrees with the findings in plaintiff’s other cases.

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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. Plaintiff’s complaint is unclear, but it

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appears he is alleging that the court accepted fraudulent evidence in one of plaintiff’s other cases.

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However, there are no allegations in his complaint that he is or was in any imminent danger of

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serious physical injury at the time he filed his complaint. Thus, the undersigned finds the

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imminent danger 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:

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Plaintiff’s application for leave to proceed in forma pauperis (Doc. 2) be

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This action be dismissed without prejudice to re-filing upon pre-payment

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of the filing fees.

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denied; and

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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 20 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. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Failure to file objections within the specified time may waive

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

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DATED: April 11, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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