(PC) Pierce v. Wagner et al, No. 1:2016cv00045 - Document 4 (E.D. Cal. 2016)

Court Description: FINDINGS And RECOMMENDATIONS To Deny Plaintiff's Request To Proceed In Forma Pauperis (Doc. 2 ), 30-Day Deadline, signed by Magistrate Judge Jennifer L. Thurston on 1/26/2016. F&R's referred to Judge Dale A. Drozd; Objections to F&R due by 2/29/2016(Fahrney, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 SEAVON PIERCE, Plaintiff, 12 v. 13 14 WAGNER, et al., FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS (Doc. 2) Defendants. 15 Case No. 1:16-cv-00045-JLT (PC) 30-DAY DEADLINE 16 Plaintiff identifies this action as a “Petition to Compel under 28 U.S.C. § 1361.” However, 17 his allegations make clear that he is attempting to pursue violation of rights pursuant to 42 U.S.C. 18 ' 1983. On January 11, 2016, Plaintiff filed an application to proceed in forma pauperis pursuant 19 to 28 U.S.C. § 1915, which should be DENIED since Plaintiff has three strikes under that section 20 and fails to show that he is in imminent danger of serious physical injury. 21 A. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 Motions to proceed in forma pauperis are governed by 28 U.S.C. § 1915. This section 22 23 reads, “In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, 24 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 25 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 27 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 28 /// 1 1 2 B. DISCUSSION The Court may take judicial notice of its own court records. United States v. Howard, 381 3 F.3d 873, 876 n.1 (9th Cir. 2004). Here, the court takes judicial notice Plaintiff’s three prior 4 actions: Seavon Pierce v. Fernando Gonzales, et al., 1:10-cv-00285-JLT, which the Court 5 dismissed on December 3, 2012 for failure to state a claim; Seavon Pierce v. Lancaster State 6 Prison, 2:13-cv-08126, which the Court dismissed on December 3, 2013 as frivolous, malicious, 7 and for failure to state a claim; and Seavon Pierce v. Warden of Lancaster, 2:13-cv-01939-UA- 8 CW, which the Court dismissed on March 28, 2013 as frivolous, malicious, and for failure to state 9 a claim. Plaintiff is thus subject to 28 U.S.C. § 1915(g) and is precluded from proceeding in 10 forma pauperis in this action unless he has shown that at the time he filed this action, he was 11 under imminent danger of serious physical injury. 12 The Court has reviewed Plaintiff's filing in this action (Docs. 1) and finds that he does not 13 meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 14 2007). In the petition that Plaintiff has filed in this action, he lists himself and various individuals 15 along with “Prison Legal News” as petitioners with Attorney General Benjamin Wagner, “Public 16 Corruption Section,” “Public Corruption Investigations Sections, F.B.I.,” “Department of 17 Corrections,” and “Federal Judicial Commission” as respondents. In the petition, Plaintiff 18 requests “for duty to report such acts as defined by law. The information must be reported and 19 investigated by duty of the respondents, see Exhibits as evidence of concealment of crimes which 20 involves the President. Duty and enforcement is requested as relief.” (See Doc. 1, p. 1.) Plaintiff 21 basically complains that the respondents are failing to perform required duties. Further, while he 22 lists a variety of duties he feels respondents have failed to perform, he fails to link any infringing 23 action to any of the named defendants. Plaintiff’s allegations are largely nonsensical such as: 24 25 26 27 28 The parties as, the media; the press; attorney’s; government/public officials; the first petitioner listed, is also defined as the public and has rights as the public, and as a separate party of interest, invoking the rights of the 1st Amendment to be free from governmental interference, acts being prohibited upon the duty of the respondents. ‘The public interest’ upon public information is being infringed upon by the failure to perform the described duties of the respondents. The government is not protecting the rights of the people in this matter upon these facts. No facts in dispute of these allegations 2 1 2 exist as a matter of record under the above case citing. None of Plaintiff’s allegations show that he was under an imminent danger at the time he 3 filed this action. Plaintiff therefore fails to allege specific facts indicating that he was under 4 imminent danger at the time he filed this action. Based on the foregoing, the Court finds that 5 Plaintiff fails to allege an imminent danger of serious physical injury necessary to bypass § 6 1915(g)’s restriction on filing suit without prepayment of the filing fee since he previously 7 received three strikes thereunder. Accordingly, Plaintiff may not proceed in forma pauperis in 8 this action and must submit the appropriate filing fee in order to proceed with this action. 9 C. CONCLUSION and RECOMMENDATION 10 Based on the foregoing, the Court RECOMMENDS that Plaintiff's motion to proceed in 11 forma pauperis, filed January 11, 2016 (Doc. 2), be DENIED and that Plaintiff be ordered to pay 12 the filing fee in full. 13 These Findings and Recommendations will be submitted to the United States District 14 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30 15 days after being served with these Findings and Recommendations, Plaintiff may file written 16 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 18 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 IT IS SO ORDERED. Dated: January 26, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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