(PC) Scott v. Chan et al, No. 1:2019cv01079 - Document 4 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS to Deny 2 Motion to Proceed In Forma Pauperis and Require Payment of Filing Fee in Full Within Twenty-One Days; ORDER to Assign Case to District Judge, signed by Magistrate Judge Jeremy D. Peterson on 8/11/19. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Jeremy D. Peterson. The new case no. is: 1:19-cv-01079-DAD-JDP. Referred to Judge Drozd. Objections to F&R Due Within 14 Days. (Gonzalez, R)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICKEY LEON SCOTT, 11 12 13 14 15 16 17 Plaintiff, v. J. CHAN, and CALIFORNIA DEPARTMENT OF CORRECTIONS, Case No. 1:19-cv-01079-JDP FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTYONE DAYS ECF No. 2 Defendants. OBJECTIONS DUE WITHIN 14 DAYS ORDER TO ASSIGN CASE TO DISTRICT JUDGE 18 19 Plaintiff Rickey Leon Scott is a state prisoner proceeding without counsel in this civil 20 rights action brought under 42 U.S.C. § 1983. On August 5, 2019, plaintiff filed an application to 21 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. 22 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 23 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 24 detained in any facility, brought an action or appeal in a court of the United States that was 25 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 27 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 28 1 1 for failing to state a claim upon which relief maybe granted.1 Plaintiff has been informed in at 2 least two other cases that he is subject to § 1915(g).2 3 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 4 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Plaintiff resides at Salinas Valley State 5 Prison, but his allegations concern events said to have taken place at North Kern State Prison. 6 ECF No. 1 at 1. Because plaintiff challenges past misconduct, it does not appear that plaintiff 7 faces an imminent danger. 8 Accordingly, plaintiff’s in forma pauperis application should be denied, and he should 9 pay the filing fee in full, since he has accrued three or more strikes and was not under imminent 10 danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). 11 Order 12 The clerk of court is directed to assign this case to a district judge who will review these 13 findings and recommendations. 14 Findings and Recommendations 15 Based on the foregoing, it is hereby recommended that: 16 1. plaintiff’s in forma pauperis application, ECF No. 2, be DENIED; 17 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 18 of these findings and recommendations; and 19 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 20 these findings and recommendations, all pending motions be terminated, and this action 21 be dismissed without prejudice. 22 The undersigned submits the findings and recommendations to a district judge under 28 23 24 25 26 27 28 1 The cases include Scott v. Hill, No. C 92-4861 MHP (N.D. Cal. 1992); Scott v. Clerks of SF County, 1993 U.S. Dist. LEXIS 1480, No. C 92-4802 MHP (N.D. Cal. 1993); Scott v. Santa Rita Medical Service, No. C 91-3947 MHP (N.D. Cal. 1991); and Scott v. Bell, No. C 91-3925 MHP (N.D. Cal. 1991). 2 See Scott v. Smith, 1999 U.S. Dist. LEXIS 1209, No. C 99-394 MHP (N.D. Cal. 1999) (recognizing that plaintiff had been found to be a three-striker under the PLRA); Scott v. Smith, 1999 U.S. Dist. LEXIS 49, No. C 98-4920 MHP (N.D. Cal. 1999) (finding plaintiff to be a threestriker under the PLRA). 2 1 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 2 Court, Eastern District of California. Within fourteen days of the service of the findings and 3 recommendations, plaintiff may file written objections to the findings and recommendations with 4 the court and serve a copy on all parties. That document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 6 and recommendations under 28 U.S.C. § 636(b)(1)(C). 7 8 IT IS SO ORDERED. 9 Dated: 10 August 11, 2019 UNITED STATES MAGISTRATE JUDGE 11 12 13 No. 204 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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