1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS BRENT FIELDS, Case No.: 1:24-cv-01019-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY IN FORMA PAUPERIS STATUS 13 v. 14-DAY OBJECTION PERIOD 14 SAMAN SAMADANI, et al., Clerk of the Court to Assign District Judge 15 Defendants.
17 Plaintiff Marcus Brent Fields is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. section 1983. 19 I. INTRODUCTION 20 Plaintiff initiated this action by filing a complaint in the United States District Court for 21 the Central District of California on August 16, 2024. (Doc. 1.) Plaintiff also filed a motion for 22 the appointment of counsel. (Doc. 2.) 23 On August 19, 2024, the Central District issued a notice to Plaintiff advising him of a 24 filing discrepancy as he had not paid the $405 filing fee. (Doc. 3.) Plaintiff was advised that if he 25 could not pay the entire filing fee, he must complete and return a request to proceed without 26 prepayment of filing fees form within thirty days. (Id.) 27 On August 26, 2024, United States District Judge John W. Holcomb issued an Order 1 venue is proper in the Eastern District where the events giving rise to Plaintiff’s claims occurred 2 at Kern Valley State Prison in Delano, California. (Id.) For the reasons discussed below, the 3 Courts finds that Plaintiff need not submit an application to proceed in forma pauperis as he is 4 precluded from proceeding in forma pauperis in this action. 5 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 6 28 U.S.C. section 1915 governs IFP proceedings. The statute provides that “[i]n no event 7 shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 8 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 9 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 10 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 11 physical injury.” 28 U.S.C. § 1915(g). 12 In determining whether a case counts as a “strike,” “the reviewing court looks to the 13 dismissing court’s action and the reasons underlying it…. This means that the procedural 14 mechanism or Rule by which the dismissal is accomplished, while informative, is not 15 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted). 16 III. DISCUSSION 17 The Court takes judicial notice1 of prior lawsuits filed by Plaintiff in the United States 18 District Court for Southern District of California and the Ninth Circuit Court of Appeals: 19 1. Fields v. Newsom, No. 3:22-00044-LL-MDD (S.D. Cal.) (dismissed for failure to state a 20 claim and as frivolous on May 16, 2022); 21 2. Fields v. Bouria, No. 3:22-cv-01656-JLS-MSB (S.D. Cal.) (dismissed for failure to state a 22 claim and as frivolous on November 18, 2022);2 23 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 24 1980).
25 2 At least three subsequent actions filed by Plaintiff in the Southern District have been dismissed after 26 Plaintiff failed to pay the filing fee as ordered by that Court: Fields v. Newsome, No. 3:23-cv-01416- WQH-MSB; Fields v. Macomber, No. 3:23-cv-01575-DMS-JLB; and Fields v. Macomber, No. 3:23-cv- 27 02107-DAB-BLM. Additionally, an action filed by Plaintiff in the Central District of California has also been dismissed for his failure to pay the filing fee as ordered: Fields v. Macomber, No. 2:24-cv-00207- JWH-SHK. 1 3. Fields v. Newsom, No. 22-55519 (9th Cir.) (appeal dismissed as frivolous on November 2 17, 2022); and 3 4. Fields v. Bouria, No. 22-56171 (9th Cir.) (appeal dismissed as frivolous on May 18, 2023) 4 A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g). 5 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). An appeal 6 dismissed as frivolous also constitutes a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th 7 Cir. 2016). Because Plaintiff has incurred at least three prior “strikes, and each was dismissed 8 prior to the commencement of the current action on August 16, 2024, Plaintiff is subject to the 9 section 1915(g) bar. Moreover, he is precluded from proceeding IFP in this action unless, at the 10 time he filed his complaint, he was under imminent danger of serious physical injury. See 11 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 12 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations do 13 not meet the imminent danger exception. Plaintiff alleges his constitutional rights were violated 14 when his C-PAP device was confiscated on October 25, 2023. (Doc. 1.) Although Plaintiff 15 complains the lack of his C-PAP device caused him “to suffer for months on end,” that his asthma 16 “put [him] in distress,” and that he would wake in the middle of the night choking and concerned 17 about his existing heart condition, these allegations are insufficient to demonstrate an imminent 18 danger of serious physical injury. A review of documents attached as exhibits to Plaintiff’s 19 complaint support this finding. (Id. at 15, 24 [referencing medical records].) 20 Plaintiff lost the use of his C-PAP device on October 25, 2023, but waited more than nine 21 months to file his complaint, suggesting any danger is not imminent. The “imminent danger” 22 exception cannot be triggered solely by complaints of past harm. See Andrews v. Cervantes, 493 23 F.3d 1047, 1053 (9th Cir. 2007) (“The exception's use of the present tense, combined with its 24 concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that the exception 25 applies if the danger existed at the time the prisoner filed the complaint”); Rogers v. Sterling, No. 26 2:20-cv-1508-TMC, 2021 WL 195298, at *1 (D.S.C. Jan. 20, 2021) (adopting recommendations 27 to deny IFP where plaintiff “failed to make a showing of ‘imminent danger’ as he had been 1 but had not suffered any serious medical problems as a result”); Blackman v. Mjening, No. 1:16- 2 cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of 3 serious physical injury must be a real, present threat, not merely speculative or hypothetical”); 4 Dickson v. United States, No. 5:16cv215/MP/CJK, 2016 WL 6078330, at *2 (N.D. Fla. Aug. 8, 5 2016) (recommending IFP be denied because “allegations concerning denial of a ‘sleep study’ 6 and CPAP machine, delay in receiving bottom dentures, lack of annual eye examinations and 7 denial of a paying prison job, even viewed collectively, do not arguably show plaintiff is under 8 imminent danger of serious physical injury”), recommendations adopted October 14, 2016, 2016 9 WL 6070074; Staley v. Smalley, No. 9:07-cv-1553-PMD, 2007 WL 2283647, at *2 (D.S.C. Aug.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCUS BRENT FIELDS, Case No.: 1:24-cv-01019-SKO 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY IN FORMA PAUPERIS STATUS 13 v. 14-DAY OBJECTION PERIOD 14 SAMAN SAMADANI, et al., Clerk of the Court to Assign District Judge 15 Defendants.
17 Plaintiff Marcus Brent Fields is proceeding pro se in this civil rights action pursuant to 42 18 U.S.C. section 1983. 19 I. INTRODUCTION 20 Plaintiff initiated this action by filing a complaint in the United States District Court for 21 the Central District of California on August 16, 2024. (Doc. 1.) Plaintiff also filed a motion for 22 the appointment of counsel. (Doc. 2.) 23 On August 19, 2024, the Central District issued a notice to Plaintiff advising him of a 24 filing discrepancy as he had not paid the $405 filing fee. (Doc. 3.) Plaintiff was advised that if he 25 could not pay the entire filing fee, he must complete and return a request to proceed without 26 prepayment of filing fees form within thirty days. (Id.) 27 On August 26, 2024, United States District Judge John W. Holcomb issued an Order 1 venue is proper in the Eastern District where the events giving rise to Plaintiff’s claims occurred 2 at Kern Valley State Prison in Delano, California. (Id.) For the reasons discussed below, the 3 Courts finds that Plaintiff need not submit an application to proceed in forma pauperis as he is 4 precluded from proceeding in forma pauperis in this action. 5 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 6 28 U.S.C. section 1915 governs IFP proceedings. The statute provides that “[i]n no event 7 shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 8 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 9 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 10 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 11 physical injury.” 28 U.S.C. § 1915(g). 12 In determining whether a case counts as a “strike,” “the reviewing court looks to the 13 dismissing court’s action and the reasons underlying it…. This means that the procedural 14 mechanism or Rule by which the dismissal is accomplished, while informative, is not 15 dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted). 16 III. DISCUSSION 17 The Court takes judicial notice1 of prior lawsuits filed by Plaintiff in the United States 18 District Court for Southern District of California and the Ninth Circuit Court of Appeals: 19 1. Fields v. Newsom, No. 3:22-00044-LL-MDD (S.D. Cal.) (dismissed for failure to state a 20 claim and as frivolous on May 16, 2022); 21 2. Fields v. Bouria, No. 3:22-cv-01656-JLS-MSB (S.D. Cal.) (dismissed for failure to state a 22 claim and as frivolous on November 18, 2022);2 23 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 24 1980).
25 2 At least three subsequent actions filed by Plaintiff in the Southern District have been dismissed after 26 Plaintiff failed to pay the filing fee as ordered by that Court: Fields v. Newsome, No. 3:23-cv-01416- WQH-MSB; Fields v. Macomber, No. 3:23-cv-01575-DMS-JLB; and Fields v. Macomber, No. 3:23-cv- 27 02107-DAB-BLM. Additionally, an action filed by Plaintiff in the Central District of California has also been dismissed for his failure to pay the filing fee as ordered: Fields v. Macomber, No. 2:24-cv-00207- JWH-SHK. 1 3. Fields v. Newsom, No. 22-55519 (9th Cir.) (appeal dismissed as frivolous on November 2 17, 2022); and 3 4. Fields v. Bouria, No. 22-56171 (9th Cir.) (appeal dismissed as frivolous on May 18, 2023) 4 A dismissal for a failure to state a claim is a strike for purposes of 28 U.S.C. § 1915(g). 5 Moore v. Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893-94 (9th Cir. 2011). An appeal 6 dismissed as frivolous also constitutes a strike. El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th 7 Cir. 2016). Because Plaintiff has incurred at least three prior “strikes, and each was dismissed 8 prior to the commencement of the current action on August 16, 2024, Plaintiff is subject to the 9 section 1915(g) bar. Moreover, he is precluded from proceeding IFP in this action unless, at the 10 time he filed his complaint, he was under imminent danger of serious physical injury. See 11 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 12 The Court has reviewed the complaint in this action and finds that Plaintiff’s allegations do 13 not meet the imminent danger exception. Plaintiff alleges his constitutional rights were violated 14 when his C-PAP device was confiscated on October 25, 2023. (Doc. 1.) Although Plaintiff 15 complains the lack of his C-PAP device caused him “to suffer for months on end,” that his asthma 16 “put [him] in distress,” and that he would wake in the middle of the night choking and concerned 17 about his existing heart condition, these allegations are insufficient to demonstrate an imminent 18 danger of serious physical injury. A review of documents attached as exhibits to Plaintiff’s 19 complaint support this finding. (Id. at 15, 24 [referencing medical records].) 20 Plaintiff lost the use of his C-PAP device on October 25, 2023, but waited more than nine 21 months to file his complaint, suggesting any danger is not imminent. The “imminent danger” 22 exception cannot be triggered solely by complaints of past harm. See Andrews v. Cervantes, 493 23 F.3d 1047, 1053 (9th Cir. 2007) (“The exception's use of the present tense, combined with its 24 concern only with the initial act of ‘bring[ing]’ the lawsuit, indicates to us that the exception 25 applies if the danger existed at the time the prisoner filed the complaint”); Rogers v. Sterling, No. 26 2:20-cv-1508-TMC, 2021 WL 195298, at *1 (D.S.C. Jan. 20, 2021) (adopting recommendations 27 to deny IFP where plaintiff “failed to make a showing of ‘imminent danger’ as he had been 1 but had not suffered any serious medical problems as a result”); Blackman v. Mjening, No. 1:16- 2 cv-01421-LJO-GSA-PC, 2016 WL 5815905, at *1 (E.D. Cal. Oct. 4, 2016) (“Imminent danger of 3 serious physical injury must be a real, present threat, not merely speculative or hypothetical”); 4 Dickson v. United States, No. 5:16cv215/MP/CJK, 2016 WL 6078330, at *2 (N.D. Fla. Aug. 8, 5 2016) (recommending IFP be denied because “allegations concerning denial of a ‘sleep study’ 6 and CPAP machine, delay in receiving bottom dentures, lack of annual eye examinations and 7 denial of a paying prison job, even viewed collectively, do not arguably show plaintiff is under 8 imminent danger of serious physical injury”), recommendations adopted October 14, 2016, 2016 9 WL 6070074; Staley v. Smalley, No. 9:07-cv-1553-PMD, 2007 WL 2283647, at *2 (D.S.C. Aug. 10 6, 2007) (finding that plaintiff failed to show his medical condition placed him in imminent 11 danger of physical injury where he had been without medication for a sustained period of time); 12 see also Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002) (the “imminent danger” exception is 13 available “for genuine emergencies,” where “time is pressing” and “a threat ... is real and 14 proximate”). 15 In sum, this Court finds Plaintiff has suffered three or more strikes and was not under 16 imminent danger of serious physical injury when he filed the complaint in this action. Therefore, 17 Plaintiff should be precluded from proceeding in forma pauperis in this action. Andrews, 493 18 F.3d at 1052-53. 19 IV. ORDER AND RECOMMENDATIONS 20 For the foregoing reasons, the Court DIRECTS the Clerk of the Court to assign a district 21 judge to this action and RECOMMENDS that: 22 1. Plaintiff be precluded from proceeding in forma pauperis in this action in accordance 23 with 28 U.S.C. section 1915(g); and 24 2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of 27 service of these Findings and Recommendations, a party may file written objections with the 1 Recommendations.” Plaintiff’s failure to file objections within the specified time may result in 2 waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 3 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 4 IT IS SO ORDERED. 5
6 Dated: August 28, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 7
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