(PC) McCrea v. Harmon, No. 1:2018cv01186 - Document 7 (E.D. Cal. 2018)

Court Description: ORDER Directing Clerk of Court to Randomly Assign a District Judge to this Action; FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 2 Motion to Proceed In Forma Pauperis be Denied signed by Magistrate Judge Stanley A. Boone on 09/05/2018. Referred to Judge Ishii; Objections to F&R due by 10/1/2018. (Flores, E)

Download PDF

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 TERRENCE McCREA, 9 Plaintiff, 10 11 v. J. HARMON, 12 Defendant. 13 14 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-01186-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS BE DENIED [ECF No. 2] 15 16 17 18 19 Plaintiff Terrence McCrea is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant complaint on September 4, 2018, along with a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). (ECF Nos. 1, 2.) 20 I. 21 LEGAL STANDARD 22 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 23 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 24 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 25 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 26 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 27 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 28 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 1 1 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 2 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 3 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 4 U.S.C. § 1915(g). 5 II. 6 DISCUSSION 7 As a threshold issue before turning to whether the PLRA applies to this case, the Court must 8 examine whether Plaintiff’s claim is properly brought in a civil rights action, pursuant to 42 U.S.C. § 9 1983, rather than in a petition for writ of habeas corpus. In this case, a finding in Plaintiff’s favor, i.e., 10 that he was retaliated against for attempting to exercise his free speech rights, would not necessarily 11 impact the duration of his confinement. Therefore, his claim falls outside of the core of habeas corpus, 12 and is properly brought in a civil rights complaint. See Nettles v. Grounds, 830 F.3d 922, 934-35 (9th 13 Cir. 2016) (en banc). 14 Turning to the application of the PLRA in this matter, the Court finds that Plaintiff has incurred 15 three or more strikes under section 1915(g) prior to filing this lawsuit. The Court takes judicial notice 16 of the following cases: McCrea v. McComber et al., No. 2:15-cv-01605-KJN (PC) (E.D. Cal. Dec. 21, 17 2015) (dismissed action for failure to state a cognizable claim for relief); McCrea v. Johnson, et al., No. 18 2:15-cv-01487-JAM-CKD (PC) (E.D. Cal. Dec. 9, 2015 (dismissed action with prejudice for failure to 19 state a cognizable claim for relief); and McCrea v. Lesniak et al., No. 1:17-cv-01329-LJO-SAB (PC) 20 (E.D. Cal. Apr. 12, 2018) (dismissed action with prejudice for failure to state a cognizable claim for 21 relief). 22 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 23 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 24 the conditions he faced at the time he filed his complaint on September 21, 2017. Andrews, 493 F.3d 25 at 1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 26 as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits- 27 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 28 2 1 The Court further finds that Plaintiff’s complaint allegations do not meet the imminent danger 2 exception. Andrews, 493 F.3d at 1053. Plaintiff has not shown that he is at risk of any serious physical 3 injury. Rather, in seeking monetary damages, Plaintiff contends that officer J. Harmon threatened and 4 retaliated against him on August 17, 2017, after Plaintiff expressed his desire to file a complaint against 5 the officer. Accordingly, Plaintiff is ineligible to proceed in forma pauperis in this action, and he should 6 be required to pre-pay the $400 filing fee to proceed in this case. 7 IV. 8 CONCLUSION Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 9 10 Judge to this action. 11 Further, for the reasons explained above, it is HEREBY RECOMMENDED that: 12 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 9) be denied; and 13 2. Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service of the 14 Court’s order adopting these Findings and Recommendations. These Findings and Recommendations will be submitted to the United States District Judge 15 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) 17 days after being served with these Findings and Recommendations, Plaintiff may file written 18 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 19 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 20 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 21 39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: 25 September 5, 2018 UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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.