(PC) Young v. Godwin et al, No. 1:2020cv00540 - Document 5 (E.D. Cal. 2020)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 2 Motion to Proceed In Forma Pauperis and Dismiss 1 Action Without Prejudice, signed by Magistrate Judge Jennifer L. Thurston on 4/16/2020. Objections to F&R due Within FOURTEEN DAYS. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 Plaintiff, 13 14 Case No. 1:20-cv-00540-JLT (PC) ZURI S. YOUNG, v. J. GODWIN, et al., 15 Defendants. 16 FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE (Doc. 2) 14-DAY DEADLINE Clerk of the Court to Assign a District Judge 17 Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 18 19 U.S.C. § 1915. (Doc. 2.) Because Plaintiff has three “strikes” under section 1915(g) and fails to 20 show that he is in imminent danger of serious physical injury, the Court recommends that his 21 application be denied. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 24 event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more 25 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 26 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 27 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 28 of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. DISCUSSION The Court takes judicial notice of four of Plaintiff’s prior lawsuits that were dismissed 2 3 because they failed to state a claim on which relief can be granted:1 (1) Young v. State of 4 California Attorney General, et al., Case No. 2:99-cv-01039-DFL-JFM (E.D. Cal.) (dismissed on 5 October 7, 1999 for failure to state a claim); (2) Young v. United States Government, et al., Case 6 No. 2:02-cv-02940-RT-E (C.D. Cal) (dismissed on October 15, 2002 for failure to state a claim); 7 (3) Young v. Sumptner, et al., Case No. 2:05-cv-03653-CBM-E (C.D. Cal) (dismissed on March 8 30, 2006 for failure to state a claim and failure to file an amended complaint)2; and, (4) Young v. 9 Voong, et al., Case No. 1:17-cv-01671-LJO-SAB (E.D. Cal.) (dismissed on March 7, 2018 for 10 failure to state a claim). All of these cases were dismissed before Plaintiff initiated the current 11 action on April 15, 2020. Plaintiff is therefore precluded from proceeding in forma pauperis in 12 this action unless, at the time he filed his complaint, he was under imminent danger of serious 13 physical injury. See Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 14 In his complaint, Plaintiff alleges that prison officials at Kern Valley State Prison (1) 15 discriminate against Black prisoners, (2) “racially target[] Black[] [prisoners] for violence” by 16 other inmates, (3) conducted an illegal search of Plaintiff’s cell, (4) issued a false rules violation 17 report against Plaintiff, and (5) are retaliating against Plaintiff for his litigation activities. (See 18 Doc. 1 at 5, 6, 7.) Plaintiff states that “CDCR, … RJD [R.J. Donavan Correctional Facility], LAC 19 [California State Prison, Los Angeles County], CCI, and KVSP have all conspired … to murder 20 [him],” and such “modus operandi … is headed by Ralph M. Diaz, Secretary [of CDCR].” (Id. at 21 7.) Notwithstanding this and other conclusory assertions, Plaintiff does not provide facts that 22 show he is in imminent future danger of serious physical injury. Thus, Plaintiff does not meet the 23 imminent danger exception under section 1915(g). 24 /// 25 /// 26 27 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). When a “court dismisses a complaint on the ground that it fails to state a claim, … the court grants leave to amend, and … the plaintiff then fails to file an amended complaint, the dismissal counts as a strike.” Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017). 2 28 2 1 III. CONCLUSION AND RECOMMENDATIONS 2 Based on the foregoing, the Court RECOMMENDS that: 3 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 4 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 5 6 7 filing fee. The Clerk of the Court is DIRECTED to assign a District Judge to this action. These Findings and Recommendations will be submitted to the United States District 8 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 9 of the date of service of these Findings and Recommendations, Plaintiff may file written 10 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 11 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 12 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 15 16 IT IS SO ORDERED. Dated: April 16, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 3

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