(PC) Melger v. Newsom et al, No. 2:2023cv00603 - Document 6 (E.D. Cal. 2023)

Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 6/1/2023 ORDERING the Clerk to assign a district judge to this action. IT IS RECOMMENDED that plaintiff's application to proceed 2 ifp be denied and plaintiff be directed to tender the filing fee within 30 days of any order adopting these recommendations. Assigned and referred to Judge Dale A. Drozd; Objections to F&R due within 14 days. (Yin, K)

Download PDF
(PC) Melger v. Newsom et al Doc. 6 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 THOMAS JOSEPH MELGER, 10 Plaintiff, 11 12 Case No. 2:23-cv-00603-JDP (PC) ORDER AND FINDINGS AND RECOMMENDATIONS v. GAVIN NEWSOM, et al., 13 Defendants. 14 15 16 17 18 19 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 20 ECF No. 2. He is, however, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). 21 He has, in other words, filed three cases that have been dismissed for failure to state a claim. 22 Plaintiff was identified as a three-striker in Melger v. Sacramento Sheriff Department, No. 2:21- 23 cv-01611-WBS-AC, at ECF Nos. 5 & 8.1 Plaintiff might still be eligible to proceed in forma 24 pauperis if his complaint made a showing of imminent physical danger. The allegations in his 25 26 27 28 1 In that case, Judge Claire found that plaintiff had filed three cases dismissed for failure to state a claim: (1) Melger v. Wesp, Case No. 2:16-cv-01103-KJN (E.D. Cal.); (2) Melger v. Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and (3) Melger v. Becerra, Case No. 2:18-cv03264-WBS-CKD (E.D. Cal.). Here recommendations were adopted by Judge Shubb. ECF No. 8. 1 Dockets.Justia.com 1 complaint are inadequate to make this showing. 2 Plaintiff alleges that his rights were violated when, in March 2022, he attempted to set up 3 a tent on private property and was told to leave. ECF No. 1 at 3-4. Some time later, he went to 4 Placer County Health and Human Services to apply for welfare, but found that he was eligible 5 only for two hundred dollars a month in rent assistance—not enough to get an apartment. Id. at 4. 6 These allegations, taken as true, do not establish that plaintiff is in imminent danger of physical 7 harm. 8 9 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge to this action. 10 Further, it is RECOMMENDED that plaintiff’s application to proceed in forma pauperis, 11 ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any 12 order adopting these recommendations. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 18 objections shall be served and filed within fourteen days after service of the objections. The 19 parties are advised that failure to file objections within the specified time may waive the right to 20 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 21 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 IT IS SO ORDERED. 24 Dated: 25 26 June 1, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 27 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.