(PC) Melger v. Newsom, No. 2:2023cv00931 - Document 7 (E.D. Cal. 2023)
Court Description: ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 7/6/2023 ORDERING the Clerk to randomly assign a United States District Judge to this action. IT IS RECOMMENDED that plaintiff's 2 application to proceed ifp be denied; and plaintiff be ordered to pay the $402 filing fee within 14 days from the date of any order adopting these findings and recommendations, and be warned that failure to do so will result in the dismissal of this action. Assigned and referred to Judge Daniel J. Calabretta; Objections to F&R due within 14 days. (Yin, K)
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(PC) Melger v. Newsom Doc. 7 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 13 14 15 No. 2:23-cv-00931-EFB (PC) Plaintiff, v. ORDER GAVIN NEWSOM, Defendant. 16 17 Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights complaint. 18 ECF No. 1. He seeks leave to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915(a). For 19 the reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to 20 proceed in forma pauperis. 21 A prisoner may not proceed in forma pauperis: 22 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 23 24 25 26 28 U.S.C. § 1915(g). A review of court records reveals that it was determined in Melger v. 27 Sacramento Sheriff Department, No. 2:21-cv-01611-WBS-AC (E.D. Cal. Oct. 6, 2021), that 28 plaintiff has “struck out” under 28 U.S.C. § 1915(g). 1 Dockets.Justia.com 1 The section 1915(g) exception applies if the complaint makes a plausible allegation that 2 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 3 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Here, the complaint does 4 not allege that plaintiff faced an imminent danger of serious physical injury at the time plaintiff 5 filed the complaint. See ECF No. 1 (alleging that California’s Three Strikes Law “is a 6 discrimination based law”). Plaintiff’s application for leave to proceed in forma pauperis must 7 therefore be denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in 8 order to proceed with this action. 9 10 11 12 Accordingly, it is hereby ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this action. Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, it is RECOMMENDED that: 13 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and 14 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any 15 order adopting these findings and recommendations and be warned that failure to do so will result 16 in the dismissal of this action. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 within the specified time may waive the right to appeal the District Court’s order. Turner v. 23 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 24 25 Dated: July 6, 2023. 26 27 28 2
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