(PC) Martinez v. Pfeiffer, No. 1:2020cv00998 - Document 15 (E.D. Cal. 2021)

Court Description: FINDINGS and RECOMMENDATIONS recommending that Plaintiff's In Forma Pauperis status be REVOKED; ORDER GRANTING 7 IFP be VACATED and Plaintiff be required to pay the $400.00 filing fee; referred to Judge Unassigned DJ, signed by Magistrate Judge Sheila K. Oberto on 1/4/2021. (Objections to F&R due within 14-Day Deadline)(Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO MARTINEZ, 12 Plaintiff, 13 14 v. C. PFEIFFER, 15 Case No. 1:20-cv-00998-SKO (PC) FINDINGS AND RECOMMENDATIONS TO REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS 14-DAY DEADLINE Defendant. Clerk of the Court to Assign a District Judge 16 17 Plaintiff Ricardo Martinez, a state prisoner proceeding pro se, initiated this action on July 18 20, 2020. (Doc. 1.) On July 27, 2020, the Court granted Plaintiff’s motion to proceed in forma 19 pauperis (IFP) pursuant to 28 U.S.C. § 1915. (Doc. 7.) Because Plaintiff accrued more than three 20 “strikes” under section 1915(g) prior to initiating this action, and fails to show that he was in 21 imminent danger of serious physical injury at the time he filed suit, the Court recommends that 22 Plaintiff’s IFP status be revoked. 23 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 24 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no 25 event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more 26 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a 27 court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails 28 to state a claim upon which relief may be granted, unless the prisoner is under imminent danger 1 of serious physical injury.” 28 U.S.C. § 1915(g) (emphasis added). 2 II. DISCUSSION The Court takes judicial notice of five of Plaintiff’s prior actions that were dismissed for 3 4 failure to state a claim on which relief can be granted1: (1) Martinez v. Davey, et al., No. 1:16-cv- 5 00084-LJO-BAM (E.D. Cal. Oct. 30, 2017); (2) Martinez v. Davey, No. 1:16-cv-01655-AWI- 6 BAM (E.D. Cal. March 5, 2018); (3) Martinez v. Standon, et al., No. 1:19-cv-00845-DAD-SAB 7 (E.D. Cal. Dec. 11, 2019); (4) Martinez v. Lewis, et al., No. 1:19-cv-00812-DAD-SAB (E.D. Cal. 8 Dec. 16, 2019); and, (5) Martinez v. Pfeiffer, et al., No. 1:19-cv-01684-DAD-SAB (E.D. Cal. 9 March 30, 2020). These cases were dismissed before Plaintiff initiated the current action on July 10 20, 2020. Plaintiff is therefore precluded from proceeding in forma pauperis unless, at the time he 11 filed his complaint, he was under imminent danger of serious physical injury. See Andrews v. 12 Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 13 Plaintiff raises a number of seemingly unrelated claims involving incidents dating back to 14 his incarceration at Solano County Jail in 2011. (Doc. 1 at 10-16.) Plaintiff is currently 15 incarcerated at Kern Valley State Prison (KVSP). (Doc. 1 at 8.) The following are the most recent 16 incidents, involving events at KVSP in 2020: Plaintiff alleges that (1) on January 7, 2020, 17 Correctional Officer Sparks placed a “Black unknown … inmate” in his holding cell to threaten 18 him, (id. at 10); (2) on February 23, 2020, Correctional Officer Volker assaulted him, (id. at 12); 19 (3) on April 25, 2020, Correctional Officer Lawhorn placed him in administrative segregation for 20 a “false battery,” (id. at 11); and, (4) on April 25, 2020, Officer Lawhorn assaulted him after he 21 made a sexual remark regarding the officer’s wife and mother. (Id. at 12.) 22 As an initial matter, the incidents above appear unrelated for purposes of Federal Rules of 23 Civil Procedure 20 and 21. In addition, and more to the point, none of the incidents show that 24 Plaintiff was in imminent danger of serious physical injury at the time his filed his complaint on 25 July 20, 2020. Plaintiff is therefore prohibited form proceeding in forma pauperis. 26 /// 27 /// 28 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 III. 2 3 CONCLUSION AND RECOMMENDATIONS Based on the foregoing, the Court DIRECTS the Clerk of the Court to assign a district judge to this action and RECOMMENDS that: 4 1. Plaintiff’s in forma pauperis status be REVOKED; 5 2. The order granting Plaintiff’s motion to proceed in forma pauperis and directing the 6 director of the California Department of Corrections and Rehabilitation or his designee 7 to collect payments for the filing fee from Plaintiff’s inmate trust account (Doc. 7) be 8 VACATED; and, 9 3. Plaintiff be required to pay the $400 filing fee in full within 30 days to proceed in this 10 action. 11 These Findings and Recommendations will be submitted to the United States District 12 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 13 of the date of service of these Findings and Recommendations, Plaintiff may file written 14 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 15 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 16 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 17 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 19 20 21 IT IS SO ORDERED. Dated: January 4, 2021 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 3 .

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