(PC) Scott v. Chau

Opinion

RICKEY LEON SCOTT, Case No. 1:19-cv-01079-JDP Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA v. PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY- J. CHAN, and CALIFORNIA ONE DAYS DEPARTMENT OF CORRECTIONS, ECF No. 2 Defendants. OBJECTIONS DUE WITHIN 14 DAYS ORDER TO ASSIGN CASE TO DISTRICT JUDGE Plaintiff Rickey Leon Scott is a state prisoner proceeding without counsel in this civil rights action brought under 42 U.S.C. § 1983. On August 5, 2019, plaintiff 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 has been informed in at least two other cases that he is subject to § 1915(g).2 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Plaintiff resides at Salinas Valley State Prison, but his allegations concern events said to have taken place at North Kern State Prison. ECF No. 1 at 1. Because plaintiff challenges past misconduct, it does not appear that plaintiff faces an imminent danger. Accordingly, plaintiff’s in forma pauperis application should be denied, and he should pay the filing fee in full, since he has accrued three or more strikes and was not under imminent danger of serious physical harm at the time this action was initiated. 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 these 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; 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. The undersigned submits the findings and recommendations to a district judge under 28

1 The cases include Scott v. Hill, No. C 92-4861 MHP (N.D. Cal. 1992); Scott v. Clerks of SF County, 1993 U.S. Dist. LEXIS 1480, No. C 92-4802 MHP (N.D. Cal. 1993); Scott v. Santa Rita Medical Service, No. C 91-3947 MHP (N.D. Cal. 1991); and Scott v. Bell, No. C 91-3925 MHP (N.D. Cal. 1991). 2 See Scott v. Smith, 1999 U.S. Dist. LEXIS 1209, No. C 99-394 MHP (N.D. Cal. 1999) (recognizing that plaintiff had been found to be a three-striker under the PLRA); Scott v. Smith, 1999 U.S. Dist. LEXIS 49, No. C 98-4920 MHP (N.D. Cal. 1999) (finding plaintiff to be a three- striker under the PLRA). 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 fourteen 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). g IT IS SO ORDERED. ° g : —N prssann — Dated: _ August 11, 2019 UNIT#D STATES MAGISTRATE JUDGE No. 204