(PC) Khademi v. City of Roseville Police Dept., No. 2:2023cv01735 - Document 10 (E.D. Cal. 2023)

Court Description: ORDER signed by Chief District Judge Kimberly J. Mueller on 12/28/23 ADOPTING 8 Findings and Recommendations in part and DENYING 7 Motion to Proceed IFP. Plaintiff has 14 days to pay the $402 filing fee. (Benson, A.)

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(PC) Khademi v. City of Roseville Police Dept. Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 Davood Khademi, 12 13 14 15 No. 2:23-cv-01735-KJM-CKD Plaintiff, ORDER v. City of Roseville Police Department, Defendant. 16 17 Plaintiff Davood Khademi is incarcerated and is proceeding in this civil rights action 18 without an attorney. He moves to proceed in forma pauperis. ECF No. 7. The action was 19 referred to the assigned Magistrate Judge under this district’s local rules. The Magistrate Judge 20 recommends denying the motion because Khademi “has had at least 3 actions dismissed for 21 failure to state a claim,” disqualifying him from relief under the in forma pauperis statute. See 22 F&Rs at 1–2, ECF No. 8 (citing 28 U.S.C. § 1915(g)). Khademi objected to that 23 recommendation. The court has reviewed the record de novo. See 28 U.S.C. § 636(b)(1). 24 Litigants ordinarily qualify to proceed in forma pauperis if they show they cannot pay the 25 filing fee. 28 U.S.C. § 1915(a)(1). Congress changed that general rule for incarcerated plaintiffs 26 in the 1990s. See Richey v. Dahne, 807 F.3d 1202, 1206 (9th Cir. 2015). Under the revised rule, 27 incarcerated plaintiffs may not proceed in forma pauperis if they have “on 3 or more occasions, 28 while incarcerated or detained in any facility, brought an action or appeal in a court of the United 1 Dockets.Justia.com 1 States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 2 upon which relief may be granted, unless the prisoner is under imminent danger of serious 3 physical injury.” 28 U.S.C. § 1915(g). This provision is commonly known as the “three strikes” 4 rule. See, e.g., Richey, 807 F.3d at 1206. An action is “frivolous” if it is “of little weight or 5 importance: having no basis in law or fact.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 6 2005) (citation and quotation marks omitted). An action “fails to state a claim upon which relief 7 may be granted” if it is subject to dismissal under Federal Rule of Civil Procedure 12(b)(6). Id. 8 An action is “malicious” if it was filed “with the intention or desire to harm another.” Id. 9 (citation and quotation marks omitted). 10 The Magistrate Judge cited three previous actions in her findings and recommendations. 11 First, in a case filed in this district by Khademi in 2018 while he was a pretrial detainee in a 12 county jail, another judge of this court dismissed the complaint for failure to state a claim under 13 Rule 12(b)(6). Khademi v. Vanderwende, No. 18-2798, 2019 WL 3936066, at *5 (E.D. Cal. Aug. 14 20, 2019), adopted in full by Order (Sept. 17, 2019), ECF No. 27. This was his first “strike” 15 under § 1915(g). Second, Khademi appealed the district judge’s order. The Ninth Circuit 16 affirmed in an unpublished memorandum disposition “because Khademi failed to allege facts 17 sufficient to state a plausible claim.” See Khademi v. Vanderwende, 812 F. App’x 588 (9th Cir. 18 2020) (unpublished). The circuit did not dismiss the appeal or find it frivolous or malicious. For 19 that reason, the appeal, though unsuccessful, was not itself a “strike.” El-Shaddai v. Zamora, 833 20 F.3d 1036, 1046 (9th Cir. 2016) (“[A]ppellate affirmances do not count as strikes unless the court 21 expressly states that the appeal itself was frivolous, malicious or failed to state a claim.” (citation 22 omitted)). 23 Third, in a case filed in this district by Khademi in 2023 while he was incarcerated in a 24 county jail, another judge of this court dismissed the complaint because the limitations period had 25 run. See Findings & Recommendations, Khademi v. Los Rios Community Coll. Dist., No. 23- 26 0260 (E.D. Cal. Apr. 24, 2023), ECF No. 3, adopted in full by Order (June 14, 2023), ECF No. 6. 27 This was a dismissal for failure to state a claim, as it was apparent from the face of the complaint 2 1 that the limitations period had run. The Magistrate Judge determined this was Khademi’s third 2 “strike.” 3 Because only two of the actions cited in the Magistrate Judge’s order qualify as “strikes” 4 under § 1915(g), the court cannot adopt the Magistrate Judge’s findings on their own terms. The 5 court takes judicial notice, however, that judges of this court have dismissed at least two other 6 actions filed by Khademi while he was incarcerated for failure to state a claim. See Khademi v. 7 Superior Court, No. 19-1494 (E.D. Cal. Oct. 16, 2020); Khademi v. Jimmanz, No. 21-1394 (E.D. 8 Cal. Apr. 1, 2022). The court therefore agrees with the Magistrate Judge that Khademi cannot 9 proceed in forma pauperis. He has not shown an “imminent danger of serious physical injury.” 10 11 28 U.S.C. § 1915(g). The findings and recommendations (ECF No. 8) are adopted in part as explained above. 12 Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 7) is denied. He is granted 13 fourteen days within which to pay the $402 filing fee for this action. Failure to pay the filing fee 14 will result in dismissal. 15 IT IS SO ORDERED. 16 DATED: December 28, 2023. 17 3

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