(PC) Anderson v. Kernan et al, No. 1:2019cv01048 - Document 13 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Applications to Proceed In Forma Pauperis re 2 , 3 , 10 , signed by Magistrate Judge Sheila K. Oberto on 9/5/19. Referred to Judge O'Neill. Objections to F&R Within 21-Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HECTOR CLARENCE ANDERSON, 12 Plaintiff, 13 v. 14 KERNAN, et al., 15 Case No. 1:19-cv-01048-LJO-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S APPLICATIONS TO PROCEED IN FORMA PAUPERIS (Docs. 2, 3, 10) Defendants. TWENTY-ONE (21) DAY DEADLINE 16 17 18 I. 19 INTRODUCTION Plaintiff, Hector Clarence Anderson, is a state prisoner proceeding pro se in this civil 20 action under 42 U.S.C. § 1983. Plaintiff has filed two applications to proceed in forma pauperis 21 pursuant to 28 U.S.C. § 1915. (Docs. 2, 10.)1 Plaintiff’s applications should be DENIED since 22 Plaintiff has three strikes under § 1915 and his allegations fail to show that he is in imminent 23 danger of serious physical injury. 24 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 28 U.S.C. § 1915 governs proceedings in forma pauperis. “In no event shall a prisoner 25 26 27 28 1 Plaintiff also filed a motion to order prison officials to provide a certified copy of his inmate trust account statement. (Doc. 3.) Prison staff filed a copy of Plaintiff’s trust fund account statement on August 20, 2019. (Doc. 12.) Plaintiff’s motion is disregarded since it is rendered moot. 1 1 bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while 2 incarcerated or detained in any facility, brought an action or appeal in a court of the United States 3 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon 4 which relief may be granted, unless the prisoner is under imminent danger of serious physical 5 injury.” 28 U.S.C. § 1915(g). 6 III. 7 DISCUSSION The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 8 873, 876 n.1 (9th Cir. 2004). Here, the Court takes judicial notice of Plaintiff’s prior lawsuits: 9 (1) Anderson v. Kernan, et al., CAED No. 1:18-cv-00021-LJO-BAM (PC), dismissed for failure 10 to state a claim on August 10, 2018; (2) Anderson v. Silva, CAED No. 8:18-cv-01612-LJO-BAM 11 (PC), dismissed for failure to state a claim on February 20, 2019; and (3) Anderson v. Keefe 12 Commissary Network, LLC, et al., CACD No. 2:19-cv-04892-VAP-FFM, dismissed for failure to 13 state a claim on June 12, 2019. All of these actions were dismissed before Plaintiff filed the 14 present action on July 31, 2019. Plaintiff is therefore subject to 28 U.S.C. § 1915(g), and is 15 precluded from proceeding in forma pauperis in this action unless, at the time the Complaint was 16 filed, he was under imminent danger of serious physical injury. 17 The Court has reviewed Plaintiff’s Complaint in this action and finds that he does not 18 meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 19 2007). Plaintiff’s allegations are all based on actions by Defendant Brown, whom Plaintiff 20 alleges was fired in May of 2017, which was more than two years before he filed this action. 21 (Doc. 1, p. 12.) Further, in Claims I and II, Plaintiff seeks to pursue claims based on violation of 22 15 CCR § 3023(a) and in Claim III, Plaintiff seeks to pursue a claim based on violation of 15 23 CCR § 3040(c)(4). The existence of regulations governing the conduct of prison employees does 24 not necessarily entitle Plaintiff to sue civilly for their enforcement, or to sue for damages based on 25 their violation. The Court has not found any authority to support a finding that there is an implied 26 private right of action under Title 15 of the California Penal Code. Given that the statutory 27 language does not support an inference that there is a private right of action, the Court finds that 28 Plaintiff cannot state any cognizable claims upon which relief may be granted based on the 2 1 violation of Title 15 regulations. Although the circumstances of which Plaintiff complains are not desirable, his allegations 2 3 do not show that he was in imminent danger of serious physical injury when he filed this action 4 on July 31, 2019. See Williams v. Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015); Andrews v. 5 Cervantes, 493 F.3d 1047, 1056-57 (9th Cir. 2007). Thus, Plaintiff is precluded from proceeding 6 in forma pauperis in this action. Andrews, 493 F.3d at 1056-57. This case should be dismissed 7 without prejudice to refiling2 upon prepayment of the filing fee. 8 IV. CONCLUSION and RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s applications to 9 10 proceed in forma pauperis, filed on July 31, 2019, (Doc. 2), and August 14, 2019, (Doc. 10), be 11 DENIED and this action be DISMISSED without prejudice to refiling upon prepayment of the 12 filing fee. 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 15 twenty-one (21) days of the date of service of these Findings and Recommendations, Plaintiff 16 may file written objections with the Court. The document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within 18 the specified time may result in the waiver of his rights on appeal. Wilkerson v. Wheeler, 772 19 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 IT IS SO ORDERED. 22 Dated: September 5, 2019 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 2 Plaintiff is cautioned that, if he refiles in this or any other court based on any claimed violation of California law, he will be required to show compliance with the California Government Claims Act, set forth in California Government Code sections 810 et seq. 3

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