(PC) Melger v. FBI, No. 2:2023cv00770 - Document 5 (E.D. Cal. 2023)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Jeremy D. Peterson on 5/16/2023 ORDERING the Clerk to assign a district judge to this action and RECOMMENDING that plaintiff's 2 application to proceed 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 Kimberly J. Mueller; Objections to F&R due within 14 days. (Yin, K)

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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 THOMAS JOSEPH MELGER, 12 Plaintiff, 13 14 15 Case No. 2:23-cv-00770-JDP (PC) v. ORDER AND FINDINGS AND RECOMMENDATIONS FEDERAL BUREAU OF INVESTIGATIONS, Defendant. 16 17 18 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, 19 ECF No. 2. However, plaintiff is a “Three-Striker” within the meaning of Title 28 U.S.C. 20 § 1915(g). 21 The court takes judicial notice of the following cases constituting strikes: Melger v. 22 Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.) (dismissing without leave to amend for 23 failure to state a claim); Melger v. U.S. Dep’t of the Treasury, 1:21-cv-01183-JLT-SAB (E.D. 24 Cal.) (dismissing for failure to state a claim, failure to comply with court orders, and failure to 25 prosecute); and Melger v. Hopper, 2:17-cv-00224-JAM-DMC (E.D. Cal.) (dismissing for failure 26 to state a claim).1 27 28 In Melger v. Sacramento Sheriff Dep’t, No. 2:21-cv-01611-WBS-AC, Judge Claire issued findings and recommendations denying plaintiff’s in forma pauperis application because 1 1 1 Despite being a “three-striker,” a plaintiff may be afforded an opportunity to proceed in 2 forma pauperis under section 1915(g) if he alleges that he was in imminent danger at the time he 3 filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 4 (9th Cir. 2007). 5 Here, plaintiff has alleged that he is in imminent danger. ECF No. 1 at 3. In the 6 complaint, he alleges that five years ago, a terrorist (or someone else) implanted a device in his 7 head, and since then he has heard voices, music, and mechanical sounds in his head. Id. He tried 8 to obtain an x-ray that would permit him to see the implant, but after he was unable to do so, he 9 wrote to the Federal Bureau of Investigation (“FBI”) several times to see if it would provide him 10 with an x-ray. Id. The FBI did not respond to plaintiff’s letters, and he claims that the FBI 11 violated his First, Fourth, and Fourteenth Amendment rights. Id. Plaintiff additionally claims 12 that he is in imminent danger. 13 Section 1915(g) states in relevant part that a prisoner who has accumulated three strikes 14 shall “[i]n no event . . . bring a civil action or appeal a judgment in a civil action or proceeding 15 [IFP] . . . unless the prisoner is under imminent danger of serious physical injury.” The section 16 1915(g) exception applies if the complaint makes a plausible allegation that the prisoner faced 17 “imminent danger of serious physical injury” at the time of filing. Id.; Andrews, 493 F.3d at 18 1055. Recently, the Ninth Circuit has adopted the approach taken by other circuit: there must be 19 a nexus between a plaintiff’s claims and the alleged danger. See Ray v. Lara, 31 F.4th 692, 700 20 (9th Cir. 2022). 21 Plaintiff alleges that he has had implants in his head for five years. The alleged 22 implantation, which predates plaintiff’s filing by several years, does not qualify him for the 23 imminent danger exception of the Three-Striker rule. See Bontemps v. Francis, No. 2:18-cv- 24 2708-DB P, 2019 WL 446360, at *3 (E.D. Cal. Feb. 5, 2019) (finding that the revocation of the 25 plaintiff’s mobility-related devices several months prior to the filing of his complaint did not 26 27 28 he is a Three Striker. The cases Judge Claire relied upon were: Melger v. Wesp, Case No. 2:16cv-01103-KJN (E.D. Cal.); Melger v. Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and Melger v. Becerra, Case No. 2:18-cv-03264-WBS-CKD (E.D. Cal.). Judge Shubb adopted those recommendations in full and denied plaintiff’s application to proceed in forma pauperis. 2 1 qualify him for the imminent danger exceptions to the Three Strikes exception). Moreover, 2 plaintiff’s allegation that unknown individuals, possibly terrorists, implanted devices in his head 3 does not relate to his claim that the FBI violated his constitutional rights. 4 5 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge to this action. 6 Further, it is RECOMMENDED that plaintiff’s application to proceed in forma pauperis, 7 ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any 8 order adopting these recommendations. 9 These findings and recommendations are submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court and serve a copy on all parties. Such a document should be captioned 13 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 14 objections shall be served and filed within fourteen days after service of the objections. The 15 parties are advised that failure to file objections within the specified time may waive the right to 16 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 17 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 18 19 IT IS SO ORDERED. 20 Dated: 21 22 May 16, 2023 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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