(PC) Joshua Bland v. Gamboa

Opinion

JOSHUA BLAND, Case No. 1:20-cv-00794-JDP Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO v. PROCEED IN FORMA PAUPERIS AND REQUIRE PAYMENT OF FILING FEE C. GAMBOA, et al., WITHIN TWENTY-ONE DAYS Defendants. ECF No. 2 OBJECTIONS DUE IN 30 DAYS ORDER TO ASSIGN CASE TO DISTRICT JUDGE Plaintiff Joshua Bland is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. Plaintiff’s complaint alleges a variety of legal violations—including violations of the First, Second, Fourth, Fifth, Eighth, Ninth, Thirteenth, and Fourteenth Amendments, as well as federal copyright laws—by more than 20 named and unnamed defendants, and requests injunctive relief and $100 million in damages. ECF No. 1. Plaintiff has also filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 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.” 28 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or for failing to state a claim upon which relief maybe granted.1 Plaintiff’s own compliant suggests that he has filed approximately 26 previous lawsuits. See ECF No. 1 at 3. Plaintiff has not satisfied the imminent danger exception to § 1915(g). That exception applies if the “the complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Plaintiff’s complaint contains no such plausible allegation. While plaintiff appears to allege physical and sexual harassment, he does not allege imminent danger of serious physical injury at the time of filing. Moreover, plaintiff’s complaint contains numerous implausible allegations that detract from any overall plausibility. These include plaintiff’s claim that he is a prisoner of war, see ECF No. 1 at 1, and plaintiff’s allegation that the California Department of Corrections and Rehabilitation owes him almost $100 million for copyright violations, see id. at 12. Accordingly, plaintiff’s in forma pauperis applications should be denied, and he should pay the filing fee in full, since he has accrued three or more strikes and does not allege that he faced imminent danger of serious physical harm at the time he initiated this action. See 28 U.S.C. § 1915(g). Order The clerk of court is directed to assign this case to a district judge who will review the findings and recommendations. Findings and Recommendations Based on the foregoing, it is hereby recommended that: 1. Plaintiff’s in forma pauperis application, ECF No. 2, be denied; 1 These include case numbers 1:18-cv-01357-LJO-EPG, 1:18-cv-01358-AWI-JDP, and 1:19-cv- 00197-DAD-BAM, all three of which were dismissed for failure to state a claim. wOAOe 4: OU VEY ET INNY INR VR MMU POC eT eT OY VMI

2. Plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations; and 3. If plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of these findings and recommendations, all pending motions be terminated, and this action be dismissed without prejudice. We submit these findings and recommendations to a district judge under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty days of the service of the findings and recommendations, plaintiff may file written objections to the findings and recommendations with the court and serve a copy on all parties. That document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). ( Caan Dated: _ June 24, 2020 UNI STATES MAGISTRATE JUDGE No. 205.