(PC) Moon v. Holland et al, No. 1:2014cv01704 - Document 7 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 2 Request to Proceed In Forma Pauperis, signed by Magistrate Judge Jennifer L. Thurston on 11/5/2014, referred to Judge O'Neill. Objections to F&R Due Within Thirty Days. (Marrujo, C)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADRIAN MOON, 12 13 14 Case No. 1:14-cv-01704-LJO-JLT (PC) Plaintiff, v. FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS HOLLAND, et al., (Doc. 2) 15 Defendants. 30-DAY DEADLINE 16 17 Plaintiff, Adrian Moon, is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. ' 1983. Plaintiff filed the complaint in this action on October 31, 2014. 19 On that same date, Plaintiff filed an application to proceed in forma pauperis, which is now 20 pending before the Court. 21 "In no event shall a prisoner bring a civil action . . . under this section if the prisoner has, 22 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 23 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 24 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 25 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 26 The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 27 873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of Moon v. A. Aquino, et al., Case 28 Number 1:13-cv-00681-LJO-DLB (PC). In that action, an order issued denying Plaintiff’s 1 1 application to proceed in forma pauperis as Plaintiff had at least five strikes1 under section 2 1915(g) prior to its filing and finding that Plaintiff had not shown that he was in imminent danger 3 of serious physical injury at the time he filed suit which precluded him from proceeding in forma 4 pauperis. This action is no different. Plaintiff’s claims in this action arise out of events occurring 5 6 from April 4, 2014 through October 26, 2014. Plaintiff complains of being forcibly removed 7 from carpentry class, strip searched, placed in the secured housing unit ("SHU"), and that false 8 rule violation reports ("RVRs") were filed against him. (Doc. 1, Comp., pp. 5, 6.) Plaintiff 9 alleges that this amounted to kidnapping and being held hostage. (Id., at p. 4.) Plaintiff contends 10 that, at the time of hearings on the RVRs he was told that if he dropped various inmate 11 appeals/grievances and lawsuits that he had pending, he would be found not guilty of the RVRs. 12 (Id., at pp. 8-12.) Plaintiff declined all such offers and was found guilty of the RVRs under which 13 he was being held in the SHU/"Maximum Isolation." (Id.) Prior to being found guilty of the first 14 false RVR, Plaintiff alleges that he was told that all of his personal and legal property had been 15 stolen and/or tampered with. Plaintiff alleges that since his "abduction and kidnapping" into the 16 SHU (id., at p. 19), he has been denied outside yard time, has had limited access to the showers, 17 no clock to be able to tell time, no access to the law library, has had his personal and legal 18 property stolen, that his legal mail has been delayed and/or tampered with (id., at pp. 16-17) and 19 is subjected to "bobby-traps" set with the intent to cause serious physical injury such as when 20 prison staff require him to wear his flip-flops to walk down the stairs to the showers (id., at p. 19- 21 20), several times there have been objects on the stair steps to cause Plaintiff to stumble (id.). 22 Another time, a sergeant yelled "If you don't drop the complaint, lawsuit, we are going to harm 23 you, you weirdo." (Id., at p. 20). Plaintiff’s allegations do not establish that he was facing imminent danger of serious 24 25 26 27 28 1 The cases relied on in that action were Case Nos. 12-5754-UA (MLG), CV 12-7697-UA (MLG), CV 12-1514-UA (MLG), EDCV 12-632-UA (MLG), and CV 12-4972 (MLG) among others. The Court also notes that Moon v. Junious, et al., 1:12-cv-00096 GSA was dismissed on March 27, 2013, for Plaintiff's failure to state a claim. Plaintiff appealed the action, but the notice of appeal was timely as to only two post-judgment motions. The appeal was found to be on issues so insubstantial as not to require further argument and the district court's post-judgment orders were summarily affirmed. 2 1 physical injury at the time the complaint was filed. Plaintiff’s allegations, even if true, do not 2 demonstrate that Plaintiff was, at any time, facing imminent danger of serious physical injury. 3 Andrews, 493 F.3d at 1055-56. Plaintiff has submitted a catch-all complaint, filled with general 4 legal conclusions, as has been his practice in numerous other actions, alleging every conceivable 5 generalized form of harm (i.e. "serious physical and psychological pain, suffering, and injury" 6 (id., at p. 20)) related to a myriad of issues. Indeed, allegations of being placed in the SHU based 7 on false RVRs, having your property and/or mail tampered with, and being subjected to various 8 verbal abuses and/or threats are unpleasant, but they do not rise to the level of physical injury. 9 To the extent that Plaintiff makes allegations that could, theoretically, cause physical 10 harm, he does not state any physical injuries that he has actually sustained by the similar events 11 that he alleges have been occurring over the past seven months. No doubt, being subjected to the 12 various forms of retaliation that he alleges is stressful and would likely chill a person of ordinary 13 firmness from pursuing further legal actions, but none of it had caused, or is likely to cause 14 serious physical injury in the future. Plaintiff's allegations do not establish that he was facing 15 imminent danger of serious physical injury at the time the Complaint was filed. 16 The Court also notes that, along with the Complaint, Plaintiff filed a request for 17 preliminary injunction/temporary restraining order seeking an order prohibiting Defendants from 18 engaging in the acts he alleges in the Complaint. This motion does not present grounds for 19 altering the above analysis. 20 21 Thus, the Court recommends that Plaintiff's application to proceed in forma pauperis be denied and that Plaintiff be ordered to pay the filing fee for this action in full. 22 Accordingly, it is HEREBY RECOMMENDED that: 23 1. Plaintiff's application to proceed in forma pauperis be denied; and 24 2. Plaintiff be ordered to pay the $400.00 filing fee in full. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 30 27 days after being served with these Findings and Recommendations, the parties may file written 28 objections with the Court. The document should be captioned "Objections to Magistrate Judge's 3 1 Findings and Recommendations." The parties are advised that failure to file objections within the 2 specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 3 1153 (9th Cir. 1991). 4 5 6 IT IS SO ORDERED. Dated: November 5, 2014 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
