Blackman v. Voohg et al

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/21/17 RECOMMENDING that plaintiff be ordered to pay the entire $400.00 in required fees within 30 days or face dismissal of the case. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TONY BLACKMAN,
Plaintiff,

12
v.

13
14

No. 2:17-cv-2000 JAM CKD P

FINDINGS AND RECOMMENDATIONS

M. VOONG, et al.,
Defendants.

15
16
17

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42

18

U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

19

U.S.C. § 636(b)(1).

20
21

I.

Three Strikes Analysis
Plaintiff has not yet submitted an application to proceed in forma pauperis in this case or

22

paid the required filing fee of $350.00 plus the $50.00 administrative fee. However, as explained

23

below, plaintiff will not be given the opportunity to submit an application to proceed in forma

24

pauperis because he has accrued three strikes under 28 U.S.C. § 1915(g) and he has not shown

25

that he is under imminent danger of serious physical injury. Instead, the court will recommend

26

that plaintiff be required to pay the $400.00 in required fees or suffer dismissal of the complaint.

27

The Prison Litigation Reform Act of 1995 (PLRA) permits any court of the United States

28

to authorize the commencement and prosecution of any suit without prepayment of fees by a
1

1

person who submits an affidavit indicating that the person is unable to pay such fees. However,

2

[i]n no event shall a prisoner bring a civil action or appeal a
judgement in a civil action or proceeding under this section if the
prisoner has, on 3 or more 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.

3
4
5
6
7

28 U.S.C. § 1915(g). The plain language of the statute makes clear that a prisoner is precluded

8

from bringing a civil action or an appeal in forma pauperis if the prisoner has brought three

9

frivolous actions and/or appeals (or any combination thereof totaling three). Rodriguez v. Cook,

10

169 F.3d 1176, 1178 (9th Cir. 1999). “[Section] 1915(g) should be used to deny a prisoner’s [in

11

forma pauperis] status only when, after careful evaluation of the order dismissing an action, and

12

other relevant information, the district court determines that the action was dismissed because it

13

was frivolous, malicious or failed to state a claim.” Andrews v. King, 398 F.3d 1113, 1121 (9th

14

Cir. 2005). “[W]hen a district court disposes of an in forma pauperis complaint ‘on the grounds

15

that [the claim] is frivolous, malicious, or fails to state a claim upon which relief may be granted,’

16

such a complaint is ‘dismissed’ for purposes of § 1915(g) even if the district court styles such

17

dismissal as denial of the prisoner’s application to file the action without prepayment of the full

18

filing fee.” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008) (second alteration in original).

19

Dismissal also counts as a strike under § 1915(g) “when (1) a district court dismisses a complaint

20

on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff

21

then fails to file an amended complaint” regardless of whether the case was dismissed with or

22

without prejudice. Harris v. Mangum, 863 F.3d 1133, 1142-43 (9th Cir. 2017).

23

Inspection of other cases filed by plaintiff in this court and in the United States District

24

Court for the Northern District of California has led to the identification of at least four cases

25

brought by plaintiff that qualify as strikes. The court takes judicial notice of the following

26

lawsuits filed by plaintiff:1

27
28

1

The court “may take notice of proceedings in other courts, both within and without the federal
(continued)
2

1
2
3
4
5

1. Blackman v. Taxdahl, E.D. Cal. No. 1:04-cv-6389 AWI LJO (case dismissed for failure to
state a claim on May 18, 2007)
2. Blackman v. Variz, N.D. Cal. No. 3:06-cv-6398 SI (case dismissed for failure to state a
claim on December 18, 2006)
3. Blackman v. Mazariegos, N.D. Cal. No. 3:06-cv-7625 SI (complaint dismissed with leave

6

to amend for failure to state a claim, case dismissed on September 4, 2007, for failure to

7

file an amended complaint)

8
9
10

4. Blackman v. Mazariegos, N.D. Cal. No. 3:07-cv-2021 SI (case dismissed for failure to
state a claim on September 5, 2007)
All of the preceding cases were dismissed well in advance of the September 24, 2017

11

filing2 of the instant action and none of the strikes have been overturned. Therefore, this court

12

finds that plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent

13

danger of serious physical injury.” 28 U.S.C. § 1915(g). To satisfy the exception, plaintiff must

14

have alleged facts that demonstrate that he was “under imminent danger of serious physical

15

injury” at the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.

16

2007) (“[I]t is the circumstances at the time of the filing of the complaint that matters for

17

purposes of the ‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie,

18

239 F.3d 307, 312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir.

19

1999); Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883,

20

885 (5th Cir. 1998).

21

The complaint alleges that various defendants have denied his inmate appeals or interfered

22

with his ability to file such appeals and failed to provide him with the necessary documentation to

23
24
25
26
27

judicial system, if those proceedings have a direct relation to matters at issue.” United States ex
rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)
(citation and internal quotation marks omitted) (collecting cases); Fed. R. Evid. 201(b)(2) (court
may take judicial notice of facts that are capable of accurate determination by sources whose
accuracy cannot reasonably be questioned).
2
Since plaintiff is a prisoner proceeding pro se, he is afforded the benefit of the prison mailbox
rule. Houston v. Lack, 487 U.S. 266, 276 (1988).

28
3

1

complete applications to proceed in forma pauperis. (ECF No. 1 at 1-7.) It also appears that the

2

conduct plaintiff complains of all took place primarily in 2016 and as far back as 2014. (Id.)

3

None of these allegations demonstrate an imminent risk of serious physical injury at the time of

4

filing. The undersigned will therefore recommend that plaintiff be required to pay the filing fee

5

in full or have the complaint dismissed.

6

II.

Plain Language Summary of this Order for a Pro Se Litigant

7

You have at least three strikes under § 1915(g) and cannot be granted in forma pauperis

8

status unless you show the court that you were in imminent danger of serious physical injury at

9

the time you filed the complaint. Because your claims are about your ability to file inmate

10

appeals and get documentation, you cannot show imminent danger. It is therefore being

11

recommended that you be required to pay the entire filing fee in full before you can go forward

12

with your complaint.

13
14

Accordingly, IT IS HEREBY RECOMMENDED that plaintiff be ordered to pay the
entire $400.00 in required fees within thirty days or face dismissal of the case.

15

These findings and recommendations are submitted to the United States District Judge

16

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

17

after being served with these findings and recommendations, plaintiff may file written objections

18

with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings

19

and Recommendations.” Plaintiff is advised that failure to file objections within the specified

20

time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153

21

(9th Cir. 1991).

22

Dated: November 21, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

23
24
25

13:blac2000.1915g.f&r

26
27
28
4