(PC) Callender v. Schellenberg, et al., No. 1:2019cv00185 - Document 7 (E.D. Cal. 2019)
Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 2 MOTION to PROCEED IN FORMA PAUPERIS be Denied signed by Magistrate Judge Barbara A. McAuliffe on 02/14/2019. Referred to Judge Drozd; Objections to F&R due by 3/4/2019.(Flores, E)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 VINCENT ANTHONY CALLENDER, 12 13 14 15 Plaintiff, v. SCHELLENBERG, et al., Defendants. 16 ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 Case No. 1:19-cv-00185-BAM (PC) Plaintiff Vincent Anthony Callender (“Plaintiff”) is a state prisoner proceeding pro se in 20 this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on February 11, 21 2019. (ECF No. 1.) Currently before the Court is Plaintiff’s motion for leave to proceed in forma 22 pauperis. (ECF No. 2.) Plaintiff’s certified trust account statement was filed on February 12, 23 2019. (ECF No. 6.) 24 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 27 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 28 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 1 1 physical injury.”1 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 2 3 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 4 1053−55 (9th Cir. 2007). Plaintiff alleges that he was deprived of his personal and legal property 5 for ten months, following his transfer between institutions. (ECF No. 1.) Although Plaintiff 6 alleges that he has suffered emotional distress and that the deprivation of his property prevented 7 him from supporting his small claims trial, he does not allege that this deprivation caused or will 8 cause any physical injury. In addition, Plaintiff states that his property was returned to him in 9 approximately October 2017. Therefore, Plaintiff has not alleged any imminent danger of serious 10 physical injury at the time of filing and has not satisfied the exception from the three strikes bar 11 under 28 U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this 12 action. 13 14 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action. 15 Further, it is HEREBY RECOMMENDED that: 16 1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 17 U.S.C. § 1915(g); and 18 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 19 action. 20 These Findings and Recommendations will be submitted to the United States District 21 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 22 27 The Court takes judicial notice of the following United States District Court cases: (1) Callender v. Dep’t of Children & Family Servs., Case No. 2:12-cv-05781-UA-PJW (C.D. Cal.) (dismissed on July 17, 2012 as frivolous, malicious, and for failure to state a claim); (2) Callender v. Castillo, Case No. 2:12-cv-01708-GEB-EFB (E.D. Cal.) (dismissed on November 4, 2013 for failure to state a claim). The Court also takes judicial notice of the following United States Court of Appeals case: Callender v. Castillo, Case No. 14-15411 (9th Cir.) (dismissed on July 15, 2014 for failure to pay the filing fee, following a denial of in forma pauperis status for filing a frivolous appeal). See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.”) (citing El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted). 28 2 23 24 25 26 1 The Court expresses no opinion on the merits of Plaintiff’s claims. 2 1 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 2 file written objections with the court. The document should be captioned “Objections to 3 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 4 objections within the specified time may result in the waiver of the “right to challenge the 5 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 6 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 9 IT IS SO ORDERED. Dated: /s/ Barbara February 14, 2019 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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