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6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DEVON DANTE HARRIS, JR., Case No. 1:24-cv-01426-EPG 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT PLAINTIFF’S v. MOTION FOR IFP STATUS BE DENIED 12 UNITED STATES OF AMERICA, (ECF No. 5) 13 Defendant. OBJECTIONS, IF ANY, DUE WITHIN 14 THIRTY DAYS 15 16 17 Plaintiff Devon Dante Harris, Jr., is incarcerated at Lerdo Max-Med Facility and is 18 proceeding pro se in this action filed on November 21, 2024. (ECF No. 1). On November 22, 19 2024, the Court ordered Plaintiff to either submit the application to proceed in forma pauperis or 20 pay the filing fee. (ECF No. 3). On January 2, 2025, Plaintiff filed an application to proceed in 21 forma pauperis (IFP) in this action (ECF No. 5). 22 Because the Court concludes that Plaintiff had at least three “strikes” prior to filing this 23 action and because he was not in imminent danger of serious physical injury at the time he filed it, the Court will recommend that Plaintiff’s motion be denied and Plaintiff be required to pay the 24 $405 filing fee in full if he wants to proceed with the action. 25 I. IFP REQUEST 26 “IFP status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 27 1999); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“To proceed in forma pauperis is a 28 1 privilege not a right.”). The grant or refusal of permission to proceed in forma pauperis is left to 2 the sound discretion of the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller 3 v. Dickson, 314 F.2d 598 (9th Cir. 1963)). 4 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) Pertinent here is the so called “three strikes provision” of 28 U.S.C. § 1915: 5 In no event shall a prisoner bring a civil action . . . under this section 6 if the prisoner has, on 3 or more prior occasions, while incarcerated 7 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 8 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 9 physical injury. 10 28 U.S.C. § 1915(g). In determining whether a dismissal counts as a “strike” under § 1915(g), 11 “the reviewing court looks to the dismissing court’s action and the reasons underlying it. . . . This 12 means that the procedural mechanism or Rule by which the dismissal is accomplished, while 13 informative, is not dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal 14 citation omitted). The Ninth Circuit has “interpreted the final form of dismissal under the statute, ‘fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a 15 Federal Rule of Civil Procedure 12(b)(6) dismissal.” Id. (alteration in original). 16 The Ninth Circuit has also held that dismissals pursuant to Federal Rule of Civil 17 Procedure 8(a) sometimes qualify as strikes. Knapp v. Hogan, 738 F.3d 1106, 1109-1110 (9th 18 Cir. 2013). In determining whether a Rule 8(a) dismissal counts as a strike, “[e]ach dismissal 19 under the Rule must be assessed independently: did the Rule 8(a) dismissal result from the court’s 20 appraisal of the merits of the case (i.e., was it ‘frivolous’ or did it ‘fail to state a claim’), or did the 21 dismissal result from an appraisal of the prisoner’s state of mind (i.e., ‘malicious’)?” (Id.). The 22 Ninth Circuit specifically held that “dismissals following the repeated violation of Rule 8(a)'s 23 ‘short and plain statement’ requirement, following leave to amend, are dismissals for failure to 24 state a claim under § 1915(g).” (Id.). 25 \\\ 26 \\\ 27 \\\ 28 1 III. ANALYSIS 2 A. Strikes 3 Plaintiff filed this action on November 21, 2024. (ECF No. 1). The Court takes judicial 4 notice1 that in the following three cases Plaintiff was granted in forma pauperis status and had his complaints dismissed: (1) Harris v. Randle, No. 1:19-cv-00254-DAD-HBK (E.D. Cal.) (case 5 dismissed on August 10, 2021, after a finding that the complaint failed to state a claim); (2) 6 Harris v. Bureau of Prisons, No. 1:17-cv-01684-SAB (E.D. Cal.) (case dismissed on July 7, 7 2017, after a finding that the complaint failed to state a claim); (3) Harris v. USA, No. 1:20-cv- 8 00007-DAD-EPG (E.D. Cal.) (case dismissed on January 14, 2021, because the first amended 9 complaint failed to comply with rule 8(a), despite being given leave to amend, and because claims 10 were barred by judicial immunity). 11 In the last case, Harris v. USA, Plaintiff was originally given the opportunity to file an 12 amended complaint after the Court’s first screening order found that Plaintiff’s complaint stated 13 no cognizable claims. Harris v. USA, 1:20-cv-00007-DAD-EPG (E.D. Cal.) (ECF No. 11). 14 Upon review of the amended complaint, the Court issued Findings and Recommendations that the 15 action be dismissed without further leave to amend. Harris v. USA, 1:20-cv-00007-DAD-EPG 16 (E.D. Cal.) (ECF No. 19 at 6). Specifically, the Court found that Plaintiff failed to comply with 17 Rule 8(a) and that judicial immunity applied to Plaintiff’s allegations. (See generally id.). In its 18 conclusion, the Court also noted that it “previously provided Plaintiff with an opportunity to 19 amend his complaint with the benefit of the relevant legal standards, and Plaintiff filed his First 20 Amended Complaint with the guidance of those legal standards.” (Id. at 4, 6). The district court 21 agreed and adopted the Findings and Recommendations. Harris v. USA, 1:20-cv-00007-DAD- 22 EPG (E.D. Cal.) (ECF No. 20). Because the Court found repeated violations of Rule 8(a)'s ‘short 23 and plain statement’ requirement, and gave Plaintiff leave to amend, and because the Court also 24
25 1 The Court may take judicial notice of a fact that “is not subject to reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 26 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 27 1992) (noting that courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”) (quoting St. Louis 28 Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)). 1 found that Plaintiff’s claims were barred by judicial immunity, this dismissal counts as a strike. 2 See Knapp, 738 F.3d at 1109-1110.
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6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DEVON DANTE HARRIS, JR., Case No. 1:24-cv-01426-EPG 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT PLAINTIFF’S v. MOTION FOR IFP STATUS BE DENIED 12 UNITED STATES OF AMERICA, (ECF No. 5) 13 Defendant. OBJECTIONS, IF ANY, DUE WITHIN 14 THIRTY DAYS 15 16 17 Plaintiff Devon Dante Harris, Jr., is incarcerated at Lerdo Max-Med Facility and is 18 proceeding pro se in this action filed on November 21, 2024. (ECF No. 1). On November 22, 19 2024, the Court ordered Plaintiff to either submit the application to proceed in forma pauperis or 20 pay the filing fee. (ECF No. 3). On January 2, 2025, Plaintiff filed an application to proceed in 21 forma pauperis (IFP) in this action (ECF No. 5). 22 Because the Court concludes that Plaintiff had at least three “strikes” prior to filing this 23 action and because he was not in imminent danger of serious physical injury at the time he filed it, the Court will recommend that Plaintiff’s motion be denied and Plaintiff be required to pay the 24 $405 filing fee in full if he wants to proceed with the action. 25 I. IFP REQUEST 26 “IFP status is not a constitutional right.” Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 27 1999); Smart v. Heinze, 347 F.2d 114, 116 (9th Cir. 1965) (“To proceed in forma pauperis is a 28 1 privilege not a right.”). The grant or refusal of permission to proceed in forma pauperis is left to 2 the sound discretion of the district court. Smart, 347 F.2d 114, 116 (9th Cir. 1963) (citing Weller 3 v. Dickson, 314 F.2d 598 (9th Cir. 1963)). 4 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915(g) Pertinent here is the so called “three strikes provision” of 28 U.S.C. § 1915: 5 In no event shall a prisoner bring a civil action . . . under this section 6 if the prisoner has, on 3 or more prior occasions, while incarcerated 7 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 8 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 9 physical injury. 10 28 U.S.C. § 1915(g). In determining whether a dismissal counts as a “strike” under § 1915(g), 11 “the reviewing court looks to the dismissing court’s action and the reasons underlying it. . . . This 12 means that the procedural mechanism or Rule by which the dismissal is accomplished, while 13 informative, is not dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (internal 14 citation omitted). The Ninth Circuit has “interpreted the final form of dismissal under the statute, ‘fail[ure] to state a claim upon which relief may be granted,’ to be essentially synonymous with a 15 Federal Rule of Civil Procedure 12(b)(6) dismissal.” Id. (alteration in original). 16 The Ninth Circuit has also held that dismissals pursuant to Federal Rule of Civil 17 Procedure 8(a) sometimes qualify as strikes. Knapp v. Hogan, 738 F.3d 1106, 1109-1110 (9th 18 Cir. 2013). In determining whether a Rule 8(a) dismissal counts as a strike, “[e]ach dismissal 19 under the Rule must be assessed independently: did the Rule 8(a) dismissal result from the court’s 20 appraisal of the merits of the case (i.e., was it ‘frivolous’ or did it ‘fail to state a claim’), or did the 21 dismissal result from an appraisal of the prisoner’s state of mind (i.e., ‘malicious’)?” (Id.). The 22 Ninth Circuit specifically held that “dismissals following the repeated violation of Rule 8(a)'s 23 ‘short and plain statement’ requirement, following leave to amend, are dismissals for failure to 24 state a claim under § 1915(g).” (Id.). 25 \\\ 26 \\\ 27 \\\ 28 1 III. ANALYSIS 2 A. Strikes 3 Plaintiff filed this action on November 21, 2024. (ECF No. 1). The Court takes judicial 4 notice1 that in the following three cases Plaintiff was granted in forma pauperis status and had his complaints dismissed: (1) Harris v. Randle, No. 1:19-cv-00254-DAD-HBK (E.D. Cal.) (case 5 dismissed on August 10, 2021, after a finding that the complaint failed to state a claim); (2) 6 Harris v. Bureau of Prisons, No. 1:17-cv-01684-SAB (E.D. Cal.) (case dismissed on July 7, 7 2017, after a finding that the complaint failed to state a claim); (3) Harris v. USA, No. 1:20-cv- 8 00007-DAD-EPG (E.D. Cal.) (case dismissed on January 14, 2021, because the first amended 9 complaint failed to comply with rule 8(a), despite being given leave to amend, and because claims 10 were barred by judicial immunity). 11 In the last case, Harris v. USA, Plaintiff was originally given the opportunity to file an 12 amended complaint after the Court’s first screening order found that Plaintiff’s complaint stated 13 no cognizable claims. Harris v. USA, 1:20-cv-00007-DAD-EPG (E.D. Cal.) (ECF No. 11). 14 Upon review of the amended complaint, the Court issued Findings and Recommendations that the 15 action be dismissed without further leave to amend. Harris v. USA, 1:20-cv-00007-DAD-EPG 16 (E.D. Cal.) (ECF No. 19 at 6). Specifically, the Court found that Plaintiff failed to comply with 17 Rule 8(a) and that judicial immunity applied to Plaintiff’s allegations. (See generally id.). In its 18 conclusion, the Court also noted that it “previously provided Plaintiff with an opportunity to 19 amend his complaint with the benefit of the relevant legal standards, and Plaintiff filed his First 20 Amended Complaint with the guidance of those legal standards.” (Id. at 4, 6). The district court 21 agreed and adopted the Findings and Recommendations. Harris v. USA, 1:20-cv-00007-DAD- 22 EPG (E.D. Cal.) (ECF No. 20). Because the Court found repeated violations of Rule 8(a)'s ‘short 23 and plain statement’ requirement, and gave Plaintiff leave to amend, and because the Court also 24
25 1 The Court may take judicial notice of a fact that “is not subject to reasonable dispute because it (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 26 determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201; see also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 27 1992) (noting that courts “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.”) (quoting St. Louis 28 Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979)). 1 found that Plaintiff’s claims were barred by judicial immunity, this dismissal counts as a strike. 2 See Knapp, 738 F.3d at 1109-1110. 3 Accordingly, the Court finds that Plaintiff has at least three “strikes” under 28 U.S.C. 4 § 1915(g). B. Imminent Danger 5 Because Plaintiff had at least three “strikes” prior to filing this action, Plaintiff is 6 precluded from proceeding in forma pauperis unless Plaintiff was, at the time the complaint was 7 filed, in imminent danger of serious physical injury. 28 U.S.C. § 1915(g). The availability of the 8 imminent danger exception “turns on the conditions a prisoner faced at the time the complaint 9 was filed, not at some earlier or later time.” Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 10 2007). Additionally, there is a nexus requirement between the danger alleged and the claims 11 asserted: “Thus, in order to qualify for the § 1915(g) imminent danger exception, a three-strikes 12 prisoner must allege imminent danger of serious physical injury that is both fairly traceable to 13 unlawful conduct alleged in his complaint and redressable by the court.” Ray v. Lara, 31 F.4th 14 692, 701 (9th Cir. 2022). Because Plaintiff is pro se, in making the imminent danger 15 determination, the Court must liberally construe Plaintiff’s allegations. Andrews, 493 F.3d at 16 1055. 17 Plaintiff’s complaint makes various frivolous allegations that the United States of 18 America is wrongfully depriving him of access to accounts totaling $783,000,000,000 in trust 19 fund assets. (ECF No. 1 at 2). Plaintiff also asserts some incomprehensible questions related to 20 inheritance of Native American lands. (See generally id.). 21 Such allegations are insufficient to show that there is a real and imminent threat to 22 Plaintiff’s personal safety. Moreover, Plaintiff makes no indication that he is experiencing any 23 imminent threat to his safety. (See generally ECF No. 1). Therefore, the Court finds that Plaintiff has failed to demonstrate that he was in imminent danger of physical injury when he 24 filed the complaint. See Driver v. Pohovich, No. 2:22-CV-1672 DB P, 2023 WL 2394154, at *2 25 (E.D. Cal. Feb. 1, 2023), report and recommendation adopted, 2023 WL 8004324 (E.D. Cal. 26 Nov. 17, 2023) (concluding that Plaintiff did not meet the imminent danger exception where 27 “[t]here [was] nothing in the complaint that would indicate plaintiff was under threat of imminent 28 1 | danger based on the excessive force incidents” alleged in the complaint that purportedly occurred 2 | about two months before filing the complaint). 3 Because Plaintiff is a “three-striker” and does not appear to have been in imminent danger 4 | when he filed this action, the Court will recommend that Plaintiff’s request for IFP status be 5 | denied and Plaintiff be required to pay the $405 filing fee in full if he wants to proceed with the 6 action. 7 IV. CONCLUSION, ORDER, AND RECOMMENDATIONS 8 The Court finds that under § 1915(g) Plaintiff may not proceed in forma pauperis in this
9 action. Accordingly, IT IS RECOMMENDED that: 8 1. Plaintiff’s Motion to Proceed in forma pauperis (ECF No. 5) be denied. 2. Plaintiff be advised that failure to pay the filing fee in full will result in the dismissal 2 of this case. Further, the Clerk of Court is DIRECTED to randomly assign a District Court Judge to the 4 present matter. 1S These findings and recommendations will be submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty days 17 after being served with these findings and recommendations, Plaintiff may file written objections 18 | with the Court. The document should be captioned “Objections to Magistrate Judge’s Findings 19 | and Recommendations.” Any objections shall be limited to no more than 15 pages, including 20 | exhibits. 21 Plaintiff is advised that failure to file objections within the specified time may result in the 22 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing 23 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 24 IT IS SO ORDERED. 25 26 | Dated: _ February 19, 2025 □□□ hey 57 UNITED STATES MAGISTRATE JUDGE