(PC) Hammler v. Dignity Health et al, No. 1:2020cv01778 - Document 15 (E.D. Cal. 2021)
Court Description: FINDINGS and RECOMMENDATIONS to Deny 9 Plaintiff's Motion for Leave to Proceed In Forma Pauperis Under 28 U.S.C. 1915(g) or Due to Sufficient Funds in Inmate Account, signed by Magistrate Judge Helena M. Barch-Kuchta on 12/01/2021. Referred to Judge Unassigned DJ. Objections to F&R Due Within Fourteen-Days. (Maldonado, C)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, 12 Plaintiff, 13 v. 14 DIGNITY HEALTH, ET. AL., 15 Defendants. Case No. 1:20-cv-1778-NONE-HBK FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS UNDER 28 U.S.C. § 1915(g) OR DUE TO SUFFICIENT FUNDS IN INMATE ACCOUNT1 FOURTEEN-DAY OBJECTION PERIOD 16 (Doc. No. 9) 17 18 19 Plaintiff Allen Hammler, a prisoner incarcerated at California State Prison, Corcoran, 20 initiated this action by filing a pro se prisoner civil rights complaint under 42 U.S.C. § 1983 on 21 December 17, 2020. (Doc. No. 1). Plaintiff did not accompany the filing of his Complaint with a 22 motion to proceed in forma pauperis (“IFP”), or the requisite filing fee. On June 17, 2021 the 23 undersigned issued an order directing Plaintiff to pay the filing fee or file an IFP motion within 24 twenty-one days. (Doc. No. 3). After being granted an enlargement of time to comply with the 25 Court’s June 17 order, Plaintiff filed a motion to proceed in forma pauperis.2 (Doc. Nos. 7, 9). 26 1 27 28 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Eastern District of California Local Rule 302 (E.D. Cal. 2019). 2 During the time between the order granting Plaintiff’s motion for an enlargement of time and his filing of an IFP motion, the Court issued Findings and Recommendations which it later rescinded due to Plaintiff 1 For the reasons discussed below, the undersigned recommends the district court deny Plaintiff’s 2 IFP motion under 28 U.S.C. § 1915(g) because Plaintiff has had at least three dismissals that 3 constitute strikes and he has not established he meets the imminent danger exception. Further, 4 Plaintiff’s IFP motion reveals as of August 2021, he had over $800.00 in his prison account. (See 5 Id. at 1; see also Doc. No. 12). Thus, alternatively on this basis, Plaintiff’s IFP motion should be 6 denied and he should be required to pay the full filing fee, if he wishes to proceed with this civil 7 action. 8 9 I. BACKGROUND AND FACTS Plaintiff is incarcerated at California State Prison-Corcoran. The Complaint is fifty-one 10 pages in length, handwritten, and not on a complaint form. (See generally Doc. No. 1). The 11 Complaint names as Defendants: Dignity Health, Adventist Health, Ralph Diaz, Ken Clark, FNU 12 Gamboa, Wilmer Cervantes, FNU Xiong, R. Andrada, J. Delatorre, FNU Duncan, and Laura 13 Flores. (Id. at 1). Plaintiff sues all Defendants in their individual capacities except Defendant 14 Ralph Diaz, who is sued in both his official and individual capacities. (Id. at 6). According to the 15 Complaint, Plaintiff identifies the following claims for relief: (1) First Amendment- Free Speech 16 (id. at 33); (2) First Amendment retaliation (id. at 33); (3) Eighth Amendment- Deliberate 17 Indifference (id.); (4) unconstitutional custom, policy, or pattern of conduct (id. at 35); (5) 18 negligence, including among other claims, negligent supervision, negligent training, negligence in 19 failing to preserve video footage, (id. at 38-42); (6) assault (id. at 43); (7) slander (id. at 44); (8) 20 publishing matter in breach of the peace (id. at 46); and (9) intentional infliction of emotional 21 distress (id. at 47). 22 The events giving rise to the first claim in the Complaint occurred on September 9, 2019 23 in the triage area of a medical facility. (Id. at 7). The Complaint describes in novel-like fashion 24 an incident where Plaintiff wanted to make a “citizen’s arrest” of either medical staff or a 25 correctional guard.3 (Id. at 7-13). Plaintiff explains that various correctional guards, specifically 26 27 28 filing an IFP motion. (See Doc. Nos. 8, 11). Because the undersigned rescinded these earlier Findings and Recommendations, Plaintiff’s objections directed at them are moot. (Doc. No. 13). 3 Later in the Complaint, Plaintiff appears to clarify that he wanted a citizen’s arrest of correctional officers Cervantes and Xiong in relation to an alleged excessive use of force incident that occurred in September 2 1 Defendant Duncan, reported to the medical department and encouraged Plaintiff to let medical do 2 its job and deal with the other issues later. (Id. at 13). Plaintiff interpreted Duncan’s statement to 3 Plaintiff to constitutes a threat of bodily injury. (Id. at 14). Plaintiff alleges he was in fear that 4 correctional officers Cervantes and Xiong would return, take over the escort, and assault or kill 5 him. (Id. at 14-15). Plaintiff alleges he was moved from the triage area to a hallway, where he 6 feared would be taken out of the view of the camera and assaulted. (Id. at 15). No assault took 7 place, but while waiting in the hall, Plaintiff had interactions with other hospital staff and a 8 security guard. Again, Plaintiff perceived the conversations with the security guard as 9 threatening. After the guard told Plaintiff he could not make a citizens’ arrest because he was a 10 prisoner and instead would need to proceed through the inmate grievance process, Plaintiff told 11 the guard he would be sued. (Id. at 16). In response the security guard smiled at Plaintiff “in 12 condescending manner.” (Id.). After the security guard left, Plaintiff alleges he had interactions 13 with correctional officers Cana and Delatorre who advised Plaintiff to wait until he got back to 14 the prison so he didn’t get himself in any trouble. (Id. ta 17). Plaintiff took issue with Cana’s 15 advice opining “his words didn’t match the aggressive tone of his voice.” (Id.). 16 Plaintiff then recounts a separate and unrelated incident that occurred on March 10, 2020 17 wherein he acknowledges he had control of the “food port” by holding the shelf of his food port 18 in his cell. (Id. at 20). A correctional official reported to his cell to speak with him in an effort to 19 gain his compliance regarding the food port. (Id.). During the incident, the correctional guard 20 used force to remove Plaintiff’s hold on the food port door, causing Plaintiff’s pinky fingers on 21 both hands to bleed. (Id.). Plaintiff went to the medical department for treatment to no avail. (Id. 22 at 21-22). The next day, following Plaintiff’s psychiatric visit, a nurse advised Plaintiff to let the 23 abrasions on his fingers “air out.” (Id. at 22). 24 Next, Plaintiff recalls an incident in June 2020 when correctional officer Cervantes 25 appeared at his cell door and was “quietly smirking slyly.” (Id. at 23). Plaintiff alleges after he 26 looked at Cervantes, Cervantes “walked away quickly.” (Id.). Plaintiff alleges this incident 27 28 2019. (Doc. No. 1 at 29). 3 1 caused Plaintiff to be fearful, as he believed an attack was being plotted, so Plaintiff ran to the 2 cell door and yelled “I’ll see you in court!” (Id.). Plaintiff alleges Cervantes responded he would 3 knock Plaintiff out in court. (Id.). 4 Plaintiff then relays a September 2020 incident in Kings County Superior Court where he 5 was proceeding pro se and cross-examined Cervantes about the use of force incident. (Id. at 24). 6 Plaintiff alleges after the court proceeding, he and Cervantes exchanged words. (Id.). Plaintiff 7 says he told Cervantes that “he was going to jail.” (Id.). Plaintiff perceived Cervantes response 8 that he did not believe Plaintiff would make it that far in court to be taunting him and 9 “capitalizing on prior threats” against Plaintiff. (Id. at 24). 10 Plaintiff then related an October 2020 incident with Cervantes wherein he alleges 11 Cervantes intentionally broke away from where he was stationed to go to Plaintiff’s cell to ask 12 Plaintiff how he was doing. (Id. at 25). Plaintiff states fear gripped him when he heard 13 Cervantes’ voice. (Id.). In response, Plaintiff admits he gave Cervantes the middle finger and 14 threatened him with bodily injury if he opened the cell door. (Id.). Plaintiff acknowledges this 15 incident prompted safety signs to be posted noting that there are “safety issues” with Plaintiff and 16 Cervantes. (Id. at 26-27). 17 Finally, Plaintiff complains that on December 9, 2020 Cervantes “went to Plaintiff’s cell 18 with evil intent to cause him emotional distress and place him in fear.” (Id. at 27). In response, 19 Plaintiff yelled at Cervantes, reminding him of the safety signs to which Cervantes encouraged 20 Plaintiff to threaten him with physical harm again. (Id.). Plaintiff claims Cervantes returned later 21 to his cell but did not contact him because psychologist Copeland was speaking with Plaintiff. 22 (Id. at 27-28). 23 24 25 26 27 28 As relief, Plaintiff seeks monetary damages and injunctive relief. (Id. at 48). II. APPLICABLE THREE STRIKE LAW The “Three Strikes Rule” states: In no event shall a prisoner bring a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in the United States that was dismissed on grounds that it was frivolous, malicious, or fails to state a claim upon which relief may 4 1 2 3 4 5 6 7 8 9 be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). Part of the Prison Litigation Reform Act, the Three Strikes Rule was enacted to help curb non-meritorious prisoner litigation. See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (citations omitted)). Under § 1915(g), prisoners who have repeatedly brought unsuccessful suits may be barred from bringing a civil action and paying the fee on a payment plan once they have had on prior occasions three or more cases dismissed as frivolous, malicious, or for failure to state a claim. Id.; see also Andrews v. Cervantes, 493 F.2d 1047, 1052 (9th Cir. 2007). Regardless of whether the dismissal was with or without prejudice, a dismissal for failure to state a claim counts as a strike under § 1915(g). Lomax, 140 S. Ct. at 1727. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 To determine whether a dismissal counts as a strike, a reviewing court looks to the dismissing court’s actions and the reasons underlying the dismissal. Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013). For a dismissal to count as a strike, the dismissal had to be on a “prior occasion,” meaning it occurred before plaintiff initiated the instant case. See § 1915(g). A dismissal counts as a strike when the dismissal of the action was for frivolity, maliciousness, or for failure to state a claim, or an appeal dismissed for the same reasons. Lomax, 140 S. Ct. at 1723 (citing Section 1915(g)); see also Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048 (9th Cir. 2016) (reviewing dismissals that count as strikes); Coleman v. Tollefson, 135 S. Ct. 1759, 1761 (2015) (dismissal that is on appeal counts as a strike during the pendency of the appeal). When a district court disposes of an in forma pauperis complaint requiring the full filing fee, then such a complaint is “dismissed” for purposes of §1915(g). Louis Butler O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). A dismissal for failure to state a claim relying on qualified immunity counts as a strike. Reberger v. Baker, 657 F. App’x 681, 683-84 (9th Cir. Aug. 9, 2016). Although not exhaustive, dismissals that do not count as § 1915(g) strikes include: dismissals of habeas corpus petitions, unless the habeas was purposefully mislabeled to avoid the three strikes provision. See generally El-Shaddai v. Zamora, 833 F.3d 1036, 1046 (9th Cir. 2016) (dismissals of habeas cases do not count as strikes, noting exception). A denial or dismissal of 28 5 1 writs of mandamus petitions, the Younger4 abstention doctrine, and Heck v. Humphrey5 generally 2 do not count as a strike, but in some instances Heck dismissals may count as a strike. See 3 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d at 1055-58 (citations omitted) 4 (recognizing some Heck dismissals may count as strikes but noting others do not; and reiterating 5 abstention doctrine dismissals and writs of mandamus do not count as strikes). A dismissal of a 6 claim based on sovereign immunity does not count as a strike. Hoffman v. Pulido, 928 F.3d 1147 7 (9th Cir. 2019). The Ninth Circuit also does not count cases dismissed for lack of jurisdiction as 8 strikes. Moore v. Maricopa Cty. Sheriff's Off., 657 F.3d 890, 894 (9th Cir. 2011). Finally, the 9 Ninth Circuit has ruled that if one reason supporting a dismissal is not a reason enumerated under 10 §1915A, then that reason “saves” the dismissal from counting as a strike. Harris v. Harris, 935 11 F.3d 670 (9th Cir. 2019). 12 Once prisoner-plaintiffs have accumulated three strikes, they may not proceed without 13 paying the full filing fee, unless “the complaint makes a plausible allegation” that the prisoners 14 “faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. 15 Caervantes, 493 F.3d 1047, 1051-52 (9th Cir. 2007) (addressing imminent danger exception for 16 the first time in the Ninth Circuit). The court must construe the prisoner’s “facial allegations” 17 liberally to determine whether the allegations of physical injury are plausible. Williams v. 18 Paramo, 775 F.3d 1182, 1190 (9th Cir. 2015). However, assertions of imminent danger may be 19 rejected as overly speculative, fanciful, or “conclusory or ridiculous.” Andrews, 493 F.3d at 20 1057, fn. 11. 21 The foregoing law must be taken in the context of Congressional intent when enacting the 22 Prison Litigation Reform Act, under which § 1915(g) falls. As the United States Supreme Court 23 recently discussed in Lomax, the purpose of § 1915(g) was to curb the “flood of nonmeritorious 24 claims,” even if not abusive claims, but to allow the court a mechanism to recognize a “three 25 striker,” deny IFP on that basis, require payment of the full filing fee, which absent being paid, 26 dismiss the case, and thereby permit time for consideration of suits more likely to succeed. 27 4 28 5 Younger v. Harris, 401 U.S. 37 (1971). Heck v. Humphrey, 512 U.S. 477 (1994). 6 1 Lomax, 140 S.Ct. at 1726; see also Bruce v. Samuels, 577 U.S. 82, 85 (2016) (the PLRA was 2 designated to filter out the bad claims filed by prisoners and facilitate consideration of the good, 3 resulting in the payment of all future filing fees payable up front for those prisoner-plaintiffs 4 deemed three-strikers). 5 III. ANALYSIS 6 A. Plaintiff Has Three or More Qualifying Strikes 7 Plaintiff is identified as a “three-striker” on the national Pro Se Three Strike Database and 8 a review of the Pacer Database reveals plaintiff has filed at least 80 civil actions or appeals in a 9 court of the United States and has been deemed a three-striker under § 1915(g) prior to filing this 10 lawsuit.6 Although not exhaustive, for purposes of this report and recommendation, each of the 11 following cases are properly deemed qualifying § 1915(g) strikes and each were entered before 12 plaintiff commenced the instant action: 13 14 15 Date of Order April 27, 2017 16 17 December 10, 2018 18 May 24, 2019 19 20 March 25, 2020 21 22 October 30, 2020 23 24 Case Style Hammler v. Director of CDCR, Case No. 1:17-cv00097(N.D. Cal.) Hammler v. Kernan, Case No. 3:18-cv-00170-DMSNLS (S.D. Cal.) Hammler v. Hough, Case No. 3:18-cv-01319 (S.D. Cal.) Hammler v. Director CDCR, Case No. 2:17-cv1949-MCE-DB (E.D. Cal.) Hammler v. California, Case No. 1:20-cv-630-DAD-GSA (E.D. Cal.) Disposition Dismissed for failure to state a claim. Dismissed for failure to state a claim and as frivolous. Dismissed for failure to state a claim and as frivolous. Dismissed for failure to state a claim. Dismissed for failure to exhaust appearing on face of complaint. This Court and other courts have previously denied Plaintiff’s IFP motions in other 25 matters because of his three-striker status. See, e.g, Case Nos. 1:21-cv-00122-AWI-GSA (E.D. 26 Cal. 2021); 2:21-cv-02065-JGB-SP (C.D. Cal. 2021). As evidenced by the above, Plaintiff has 27 28 6 See http://156.128.26.105/LitigantCase.aspx?PersonID=6929 (National Pro Se Database); http://pacer.usci.uscourts.gov. 7 1 three or more qualifying strikes for purposes of § 1915(g). 2 B. The Imminent Danger Exception Does Not Apply 3 The Complaint is peppered with references to “imminent danger” but it fails to contain 4 plausible allegations that Plaintiff is in physical danger. Instead, Plaintiff’s claimed threats or 5 fears stem from his subjective interpretation of innocuous statements or gestures as threats. For 6 example, he alleges a security guard at the hospital smiled at him in a condescending way. 7 (Supra at 2-4). Aside from Plaintiff sustaining abrasions to his fingers from the food port 8 incident, during which he admits to trying to keep the food port opened against correctional 9 officers’ directives, the Complaint is devoid of any physical harm, threatened or otherwise against 10 11 him. Many of the incidents described in the Complaint involve Plaintiff and correctional officer 12 Cervantes exchanging words, but in each incident, Plaintiff acknowledges he retorted and in fact, 13 one time gave Cervantes “the finger,” resulting in the posting of a safety warning regarding 14 Plaintiff and Cervantes. (Id.). Plaintiff claims Cervantes verbally taunts him, but allegations that 15 are “[o]verly speculative and fanciful … do not plausibly show imminent danger.” Stine v. Fed. 16 Bureau of Prisons, 2015 WL 5255377, at *6 (E.D. Cal. Sept. 9, 2015). Vague “verbal threats of 17 physical harm to [ ] health and safety” are insufficient “to demonstrate imminent danger of 18 serious physical injury.” Cruz v. Pfeiffer, 2021 WL 289408, at *2 (E.D. Cal. Jan. 28, 2021). 19 “Imminent danger of serious physical injury must be a real, present threat, not merely speculative 20 or hypothetical.” Id. Accordingly, without any factual basis these threats are too speculative and 21 vague to demonstrate imminent danger. 22 Based on the foregoing, the undersigned finds no plausible allegations that Plaintiff is in 23 imminent danger to avail himself of the exception to the three-strike bar. Based on the foregoing, 24 the undersigned recommends Plainti 25 ff’s IFP motion be denied under § 1915(g). 26 C. Plaintiff has sufficient funds in his inmate account to pay 27 Alternatively, the undersigned recommends the district court deny Plaintiff’s IFP motion 28 because he has $825.00 in his inmate account. (See Doc. No. 12). Plaintiff acknowledges he 8 1 2 received $2600.00 in economic impact payments. (See Doc. No. 8). Proceeding IFP is “a matter of privilege and not right.” Franklin v. Murphy, 745 F.2d 3 1221, 1231 (9th Cir. 1984) (abrogated on different grounds). A determination of indigency rests 4 within the court’s discretion. California Men’s Colony v. Rowland, 939 F.2d 854, 858 (9th Cir. 5 1991), reversed on other grounds, 506 U.S. 194 (1993) (“Section 1915 typically requires the 6 reviewing court to exercise its sound discretion in determining whether the affiant has satisfied 7 the statute's requirement of indigency.”). Although an IFP applicant need not be “destitute” a 8 showing of indigence is required. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339– 9 40 (1948) (recognizing that an ability not to be able to pay for oneself and his dependents “the 10 necessities of life” is sufficient). Thus, a plaintiff must allege indigence “with some particularity, 11 definiteness and certainty” before IFP can be granted. United States v. McQuade, 647 F.2d 938, 12 940 (9th Cir. 1981). Prisoners, unlike non-prisoner litigants, are in state custody “and 13 accordingly have the ‘essentials of life’ provided by the government.” Taylor v. Delatoore, 281 14 F.3d 844, 849 (9th Cir. 2002). The courts are inclined to reject ifp applications where an 15 applicant can pay the filing fee with an acceptable sacrifice to other expenses. See, e.g. Casey v. 16 Haddad, No. 1:21-CV-00855-SKO-PC, 2021 WL 2954009, at *1 (E.D. Cal. June 17, 17 2021), report and recommendation adopted, No. 1:21-CV-00855-DAD-SKO-PC, 2021 WL 18 2948808 (E.D. Cal. July 14, 2021) (finding prior balance of $1000, despite being decreased to 19 $470 shortly before filing action sufficient to pay $402 filing fee); Riddell v. Frye, No. 1:21-CV- 20 01065-SAB-PC, 2021 WL 3411876, at *1 (E.D. Cal. July 9, 2021), report and recommendation 21 adopted, No. 1:21-CV-01065-DAD-SAB-PC, 2021 WL 3472209 (E.D. Cal. Aug. 6, 2021) 22 (finding available balance of $1297.21 sufficient to pay $402 filing fee and denying ifp); Allen v. 23 Kelly, 1995 WL 396860 at *2 (N.D. Cal. 1995) (despite plaintiff initially being permitted to 24 proceed ifp, ordering plaintiff to pay $120 filing fee in full out of $900 settlement proceeds); Ali 25 v. Cuyler, 547 F. Supp. 129, 130 (E.D. Pa. 1982) (denying ifp because “plaintiff possessed 26 savings of $450 and the magistrate correctly determined that this amount was more than sufficient 27 to allow the plaintiff to pay the filing fee in this action.”). 28 Finally, lest Plaintiff argue that part or all the deposits emanate from Coronavirus Aid, 9 1 Relief and Economic Security Act (“CARES Act”) and should be disregarded, the undersigned 2 can conceive of no rational reason for not considering these deposits for purposes of determining 3 Plaintiff’s indigency. Nor is the undersigned aware of binding precedent that prevents “stimulus 4 checks” from being included when making an indigency determinization. Indeed, to the contrary, 5 other courts in this district have included the funds when making the determination. See, e.g., 6 Hammler v. Zydus Pharmacy, 2021 WL 3048380, at *1-2 (E.D. Cal. July 20, 2021) (considering 7 the plaintiff’s “economic impact payments” when determining that the plaintiff was “financially 8 able to pay the filing fee”); Corral v. California Highway Patrol, No. 1:21-CV-00822-DAD-JLT, 9 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021), report and recommendation adopted, No. 10 1:21-CV-00822-DAD-JLT, 2021 WL 3488309 (E.D. Cal. Aug. 9, 2021) (considering stimulus 11 payments in finding plaintiff not entitled to proceed ifp). 12 While a balance of $825.00 appears modest at first blush it is not inconsequential 13 considering Plaintiff does not incur expenses in prison for necessities such as sustenance, 14 housing, and medical care. Although the Ninth Circuit Court of Appeals has held that “the filing 15 fee . . . should not take the prisoner’s last dollar,” Olivares v. Marshall, 59 F.3d 109, 112 (9th Cir. 16 1995), the information provided by Plaintiff reflects that he has sufficient funds to pre-pay the 17 $402.00 filing fee in full to commence this action and still will have adequate funds left over for 18 any incidental personal or commissary expenses. 19 Should Plaintiff wish the Court to consider any additional information or should his 20 available balance change by the time he receives these Findings and Recommendations, he may 21 advise the Court. However, the Court has the authority to consider any reasons and 22 circumstances for any change in Plaintiff's available assets and funds. See Collier v. Tatum, 722 23 F.2d 653, 656 (11th Cir. 1983) (stating district court may consider an unexplained decrease in an 24 inmate’s trust account, or whether an inmate’s account has been depleted intentionally to avoid 25 court costs). 26 Based on the foregoing, the undersigned alternatively recommends Plaintiff's IFP motion 27 be denied because Plaintiff has sufficient funds in his inmate account. If Plaintiff wishes to 28 proceed with this action, Plaintiff must pre-pay the $402.00 filing fee in full. 10 1 Accordingly, it is RECOMMENDED: 2 Plaintiff’s IFP motion (Doc. No. 9) be denied and the case be dismissed, without 3 prejudice, pursuant to 28 U.S.C. § 1915(g). In the alternative, Plaintiff’s IFP motion be denied 4 and the case be dismissed, without prejudice, to Plaintiff refiling accompanied by the $402.00 5 filing fee because Plaintiff has sufficient funds in his inmate trust fund account to pay the filing 6 fee. 7 NOTICE TO PARTIES 8 These findings and recommendations will be submitted to the United States district judge 9 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within fourteen 10 (14) days after being served with these findings and recommendations, a party may file written 11 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” Parties are advised that failure to file objections within the 13 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 14 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 15 16 17 Dated: December 1, 2021 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11
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