(PC) Callender v. Ghillarduci

• Court: District Court, E.D. California
• Decided: August 27, 2024
• Docket: 1:23-cv-01208
• Status: Unknown

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 VINCENT ANTHONY CALLENDER, Case No. 1:23-cv-01208-KES-EPG (PC) 11 Plaintiff, ORDER ADOPTING IN FULL FINDINGS AND RECOMMENDATIONS TO 12 v. DENY PLAINTIFF’S IFP APPLICATION AND TO REQUIRE THAT PLAINTIFF PAY 13 GHILLARDUCI, ET AL., THE $405 FILING FEE IF HE WANTS TO PROCEED WITH THIS ACTION 14 Defendants. Docs. 2, 10 15 16 17 Plaintiff Vincent Anthony Callender is a state prisoner proceeding pro se in this civil 18 rights action filed under 42 U.S.C. § 1983 on August 14, 2023. Doc. 1. The same day, Callender 19 also filed an application to proceed in forma pauperis (“IFP”) in this action. Doc. 2. The court 20 referred the matter to a United States magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and 21 Local Rule 302. For the reasons stated below, the court adopts in full the findings and 22 recommendations issued by the magistrate judge. Doc. 10. 23 I. BACKGROUND 24 The assigned magistrate judge issued findings and recommendations recommending 25 denial of Callender’s IFP application because he was subject to the three strikes bar under 28 26 U.S.C. § 1915(g). Doc. 10. The magistrate judge found that Callender had at least three prior 27 cases dismissed that qualified as strikes. Id. at 2–3. The magistrate judge also found that, 28 1 construing Callender’s complaint liberally, his factual assertions did not satisfy the “imminent 2 danger of serious physical injury” exception to section 1915(g). Doc. 10 at 6. Accordingly, the 3 magistrate judge recommended that Callender pay the filing fee in full to proceed with his action. 4 Id. at 7. 5 The court served Callender with the findings and recommendations on December 11, 6 2023, and notified him that any objections were due within 14 days. Id. Callender timely filed 7 objections. Doc. 11. In his objections, Callender does not dispute that the dismissed cases listed 8 in the findings and recommendations qualify as “strikes” under 28 U.S.C. § 1915(g). Instead, 9 Callender asserts that (1) he did not consent to the magistrate judge’s jurisdiction, and (2) he 10 meets the imminent danger exception to the § 1915(g) bar. Id. at 2–3. 11 II. DISCUSSION 12 A. Lack of consent to magistrate judge’s jurisdiction 13 Callender’s first objection to the findings and recommendations—that he did not consent 14 to the magistrate judge’s jurisdiction—is meritless. Tripati v. Rison, 847 F.2d 548, 549 (9th Cir. 15 1988) (holding that when deciding an IFP motion, “a magistrate can prepare a report and 16 recommendation which, after allowing opportunity for objections, a district judge can review and 17 adopt, see 28 U.S.C. § 636(b) . . .”); 28 U.S.C. § 636(b) (magistrate judge shall file proposed 18 findings and recommendations to which a party may file written objections; district judge shall 19 make a de novo determination accepting, rejecting, or modifying the findings or 20 recommendations). Consistent with 28 U.S.C. § 636(b)(1) and Local Rules 302(c) and 304, the 21 assigned magistrate judge has submitted proposed findings of fact and recommendations for the 22 court’s consideration regarding Callender’s application for IFP status. The magistrate judge acted 23 consistent with 28 U.S.C. § 636(b)(1) and Callender’s consent was not required. 24 B. Imminent Danger of Serious Physical Injury 25 “[T]o qualify for the § 1915(g) imminent danger exception, a three-strikes prisoner must 26 allege imminent danger of serious physical injury that is both fairly traceable to unlawful conduct 27 alleged in his complaint and redressable by the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 28 2022). The availability of the imminent danger exception “turns on the conditions a prisoner 1 faced at the time the complaint was filed, not at some earlier or later time.” Andrews v. 2 Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). In his objections, Callender contends that he 3 experienced cruel and unusual punishment in violation of the Eighth Amendment because he 4 “was forced to lock up into his cell during work hours [which] affected and cause[d] infectious 5 diseases to spread and . . . at the time of plaintiff’s filing placed plaintiff in imminent danger of 6 physical harm, i.e., serious physical injury.” Doc. 11 at 2. Callender attaches an administrative 7 appeal form as an exhibit, in which he alleged that he and other inmate porters were required to 8 lock up in their cells during normal work hours, resulting in less time to sanitize their common 9 areas and thereby causing unsanitary conditions. Id. at 7 10 Callender’s objection that defendants’ actions prevented him and other inmates from 11 spending sufficient time sanitizing common areas, thereby allegedly causing unsanitary 12 conditions, does not establish that Callender was in in imminent danger of serious physical injury 13 at the time he filed the complaint. See Andrews, 493 F.3d at 1057 n.11 (“[A]ssertions of 14 imminent danger of less obviously injurious practices may be rejected as overly speculative or 15 fanciful, when they are supported by implausible or untrue allegations that the ongoing practice 16 has produced past harm.”). Callender has failed to establish that he qualifies for the § 1915(g) 17 imminent danger exception. 18 III. CONCLUSIONS AND ORDER 19 In accordance with 28 U.S.C. § 636(b)(1), the court has conducted a de novo review of 20 this case. Having carefully reviewed the file, including Callender’s objections (Doc. 11), the 21 court finds the findings and recommendations to be supported by the record and by proper 22 analysis. 23 Accordingly, IT IS HEREBY ORDERED: 24 1. The Findings and Recommendations issued on December 11, 2023 (Doc. 10) are 25 ADOPTED in full. 26 2. Plaintiff’s application to proceed in forma pauperis (Doc. 2) is DENIED; 27 3. Within 30 days from the date of service of this order, Plaintiff SHALL pay in full 28 the $405.00 filing fee if he wishes to proceed with his action. 1 4. Plaintiff is advised that failure to pay the required filing fee as ordered will result in 2 the dismissal of this action without prejudice. 3 4 5 | ISSO ORDERED. _ 6 Dated: _ August 26, 2024 4h ; UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28