(PC) Miller v. Lynch et al

Filing 9

ORDER and FINDINGS and RECMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 02/06/24 DIRECTING the Clerk to randomly assign a District Judge. District Judge Troy L. Nunley added to case. It is further RECOMMENDED that the 2 Motion to Proceed In Forma Pauperis be denied and that plaintiff be directed to tender the filing fee within 30 days of any order adopting these recommendation. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:23-cv-2145 TLN JDP.(Licea Chavez, V)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ELIJAH LEE MILLER,

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Plaintiff,

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v.

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J. LYNCH, et al.,

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Case No. 2:23-cv-02145-JDP (PC)
ORDER
DIRECTING THE COURT OF CLERK TO
ASSIGN A DISTRICT JUDGE TO THIS
ACTION

Defendants.

FINDINGS AND RECOMMENDATIONS

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THAT PLAINTIFF’S APPLICATION FOR
LEAVE TO PROCEED IN FORMA
PAUPERIS BE DENIED

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ECF Nos. 1 & 2

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OBJECTIONS DUE WITHIN FOURTEEN
DAYS

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Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis,

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ECF No. 2. However, plaintiff is a “Three-Striker” within the meaning of Title 28 U.S.C.

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§ 1915(g). See Miller v. Montgomery, 2:23-cv-00100-TLN-EFB (PC) (designating plaintiff as a

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“three-striker”).

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The court takes judicial notice of the following cases constituting strikes: (1) Miller v.

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Alameda, 2:21-cv-00653-TLN-JDP (dismissed February 1, 2022 for failure to state a claim);

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(2) Miller v. Thomas, 2:21-cv-02103-KJM-EFB (dismissed May 23, 2022 for failure to state a
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claim); (3) Miller v. McTaggart, 2:21-cv01521-WBS-CKD (E.D. Cal.) (dismissed November 24,

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2021 for failure to prosecute after plaintiff failed to file an amended complaint after the court

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dismissed the complaint for failure to state a claim);1 and (4) Miller v. Moseley, 2:21-cv-2252-

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TLN-KJN (E.D. Cal.) (dismissed June 3, 2022 for failure to prosecute after plaintiff failed to file

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an amended complaint after the court dismissed the complaint for failure to state a claim).

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Despite being a “three-striker,” a plaintiff may be afforded an opportunity to proceed in forma

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pauperis under section 1915(g) if she alleges that she was in imminent danger at the time she

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filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53

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(9th Cir. 2007).

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The court must determine if the potential harm amounts to “serious physical injury” and

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whether the threat is “imminent.” Cervantes, 493 F.3d at 1055-56. A prisoner fails to meet the

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exception where claims of imminent danger are conclusory. Id. at 1057 n.11. Section

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§ 1915(g)’s “imminent danger” exception cannot be triggered solely by complaints of past harm

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or generalized fears of potential harm. See id. at 1053 (“The exception’s use of the present tense,

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combined with its concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that

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the exception applies if the danger existed at the time the prisoner filed the complaint.”).

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The complaint does not demonstrate that plaintiff was in imminent danger at the time she

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filed the complaint—which is when a court must assess whether the plaintiff faced imminent

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danger—and so she does not fit into the exception contained within § 1915(g).2 The complaint

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alleges that plaintiff, a transgender inmate, is being denied her right under California Senate Bill

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No. 132, also known as “The Transgender Respect, Agency, and Dignity Act,” to be housed at a

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In Harris v. Mangum, the Ninth Circuit held that “when (1) a district court dismissed a
complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3)
the plaintiff then fails to file an amended complaint, the dismissal counts as a strike under
§ 1915(g).” 863 F.3d 1133, 1143 (9th Cir. 2017).
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The plain language of the imminent danger clause in § 1915(g) indicates that imminent
danger is to be assessed at the time of filing of the original complaint (“In no event shall a
prisoner bring a civil action . . .” (emphasis added)). See Andrews v. Cervantes, 493 F.3d 1047,
1053 (9th Cir. 2007); Bradford v. Usher, Case No. 1:17-cv-01128-DAD-SAB, 2019 WL
4316899, *4 (E.D. Cal. Sept. 12, 2019) (“[I]mminent danger for purposes of § 1915(g) is to be
measured at the time of the commencement of the action.”).
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woman’s institution. ECF No. 1; Cal. Penal Code §§ 2605, 2606 (West 2021). ECF No. 1.

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Plaintiff requests to be transferred so that she will be safe from any potential sexual harassment or

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assault. The complaint alleges generalized fear of potential harm. This does not satisfy the

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imminent danger exception. See Cervantes, 493 F.3d at 1053. Plaintiff’s application for leave to

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proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must submit

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the appropriate filing fee in order to proceed with this action.

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Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge
to this action.
Further, it is RECOMMENDED that plaintiff’s application to proceed in forma pauperis,

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ECF No. 2, be DENIED, and that plaintiff be directed to tender the filing fee within thirty days of

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any order adopting these recommendations.

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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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez

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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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February 6, 2024
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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