Blackman v. Dixon et al

Filing 7

ORDER and FINDINGS and RECOMMENDATIONS recommending signed by Magistrate Judge Allison Claire on 7/8/2019 ORDERING Clerk of Court to randomly assign a District Judge to this action and RECOMMENDING 2 Motion to Proceed IFP be denied and Plaintiff b e directed to pay the filing fee of $350.00, plus the $50.00 administrative fee in their entirety in light of 28 U.S.C. § 1915(g) prior to proceeding further with this action. Assigned and referred to Judge Kimberly J. Mueller. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY BLACKMAN,

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No. 2:18-cv-0079 AC P

Plaintiff,

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v.

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ORDER AND FINDINGS AND
RECOMMENDATIONS

MR. R. DIXON, et al.,

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Defendants.

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Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and

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has requested authority pursuant to 28 U.S.C. § 1915 to proceed in forma pauperis. ECF Nos. 1,

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2, 5. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).
For the reasons stated below, the undersigned will recommend that plaintiff’s request to

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proceed in forma pauperis be denied. It will be recommended that plaintiff be ordered to pay the

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required filing fee of $350.00 plus the $50.00 administrative fee,1 in their entirety, prior to

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proceeding further with this action, or face dismissal.

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See 28 U.S.C. §§ 1914(a), 1915(a). Only litigants proceeding in forma pauperis are exempt
from paying the $50.00 administrative fee. See 28 U.S.C. § 1914(a) (including schedule of fees).
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I.

APPLICABLE LAW

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28 U.S.C. § 1915(g) states:

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In no event shall a prisoner bring a civil action or appeal a judgment
in a civil action or proceeding under this section 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).

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“It is well-settled that, in determining a [Section] 1915(g) ‘strike,’ the reviewing court
looks to the dismissing court’s action and the reasons underlying it.” Knapp v. Hogan, 738 F.3d

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1106, 1109 (9th Cir. 2013) (brackets added) (citation omitted). “[Section] 1915(g) should be used

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to deny a prisoner’s in forma pauperis status only when, after careful evaluation of the order

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dismissing an action, and other relevant information, the district court determines that the action

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was dismissed because it was frivolous, malicious or failed to state a claim.” Andrews v. King,

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398 F.3d 1113, 1121 (9th Cir. 2006) (brackets added).

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II.

PLAINTIFF’S SECTION 1915(g) “STRIKE” CASES

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A review of plaintiff’s filing history in federal court indicates that the following cases of

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his were dismissed for reasons identified in Section 1915(g) and were adjudicated prior to the

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filing of the instant action:
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Blackman v. Taxdahl, E.D. Cal. No. 1:99-cv-5822 REC HGB (case dismissed for failure
to state a claim on March 12, 2001);

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Blackman v. Variz, N.D. Cal. No. 3:06-cv-6398 SI (case dismissed for failure to state a
claim on December 18, 2006);

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Blackman v. Mazariegos, N.D. Cal. No. 3:06-cv-7625 SI (complaint dismissed with leave

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

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for failure to file an amended complaint); and
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Blackman v. Mazariegos, N.D. Cal. No. 3:07-cv-2021 SI (case dismissed for failure to
state a claim on September 5, 2007).

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III.

DISCUSSION

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All the preceding cases were dismissed well in advance of the January 8, 2018 filing2 of

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

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plaintiff is precluded from proceeding in forma pauperis unless he is “under imminent danger of

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

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alleged facts that demonstrate that he was “under imminent danger of serious physical injury” at

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the time of filing the complaint. Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007)

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

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‘imminent danger’ exception to § 1915(g).”); see also, Abdul-Akbar v. McKelvie, 239 F.3d 307,

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312-14 (3rd Cir. 2001); Medberry v. Butler, 185 F.3d 1189, 1192-93 (11th Cir. 1999); Ashley v.

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Dilworth, 147 F.3d 715, 717 (8th Cir. 1998); Banos v. O’Guin, 144 F.3d 883, 885 (5th Cir. 1998).

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To extent the complaint is comprehensible,3 it alleges that various defendants have denied

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plaintiff’s inmate appeals or interfered with his ability to file such appeals and have denied him

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access to the law library. See ECF No. 1 at 2-9. These allegations do not demonstrate an

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imminent risk of serious physical injury at the time of filing. The undersigned will therefore

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recommend that plaintiff be required to pay the filing fee in full or have the complaint dismissed.

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IV.

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PLAIN LANGUAGE SUMMARY OF THIS ORDER FOR A PRO SE LITIGANT
Because several of your previous federal lawsuits have been dismissed for failure to state

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a claim, you have at least three “strikes” under § 1915(g). That means you cannot be granted in

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forma pauperis status unless your complaint shows that you were in imminent danger of serious

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physical injury at the time you filed it. The claims in your complaint appear to relate primarily to

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your ability to file inmate appeals and go to the law library. This does not show that you were in

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imminent danger of serious physical injury at the time you filed it. It is therefore being

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recommended that you be required to pay the entire filing fee in full before you can proceed.

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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). Although plaintiff does not provide a
certificate of service, the court will assume he submitted the complaint for mailing on the day it
was signed. See ECF No. 1 at 8.
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Unfortunately, much of the complaint is rambling and incomprehensible. See ECF No. 1 at
1-9.
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Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a
District Court Judge to this action.

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IT IS FURTHER RECOMMENDED that:

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1. Plaintiff’s motion to proceed in forma pauperis, filed January 16, 2018 (ECF No. 2),

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be DENIED, and
2. Prior to proceeding further with this action, plaintiff be directed to pay the filing fee of
$350.00, plus the $50.00 administrative fee in their entirety in light of 28 U.S.C. § 1915(g).

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

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

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

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(9th Cir. 1991).

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DATED: July 8, 2019.

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