1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 L.M. DANIELS, II. ) Case No.: 1:19-cv-01682-SAB (PC) ) 12 Plaintiff, ) ) ORDER DIRECTING CLERK OF COURT TO 13 v. ) RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION 14 F.C.U. RAPE UNIT, et.al., ) ) FINDINGS AND RECOMMENDATION 15 Defendants. ) RECOMMENDING PLAINTIFF’S MOTION TO ) PROCEED IN FORMA PAUPERIS BE DENIED 16 ) ) [ECF No. 2] 17 )

18 Plaintiff L.M. Daniels, II. is appearing pro se in this civil rights action pursuant to

1983. 20 Plaintiff filed the instant action on November 25, 2019, along with a motion to proceed in 21 forma pauperis.1 (ECF Nos. 1, 2.) 22 I. 23 DISCUSSION 24 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 25 complaints and appeals.” Silva v. Di Vittorio,

(9th Cir. 2011). Pursuant to 26

27 1 On the form complaint, Plaintiff lists Tony Botti on the line for the name of the Plaintiff. (ECF No. 1 at 1.) However, on the next page, Plaintiff lists Toni Botti, Chief Spokesperson for the Fresno County Jail as a Defendant. (Id. at 2.) Thus, it is 28 1 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 2 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 3 pauperis unless they are under imminent danger of serious physical injury.

(g); 4 Andrews v. Cervantes,

(9th Cir. 2007). The statute provides that “[i]n no event 5 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior occasions, 6 while incarcerated or detained in any facility, brought an action or appeal in a court of the United States 7 that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which 8 relief may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28

(g). 10 A review of the actions filed by Plaintiff reveals that he is subject to

(g) and is 11 precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the complaint was filed, 12 under imminent danger of serious physical injury. The Court takes judicial notice of the following cases: 13 (1) Daniels v. Piearcy, et.al., Case No. 1:10-cv-00630-JLT (E.D. Cal.) (dismissed on February 24, 2011, 14 for failure to state a claim); (2) Daniels v. Watson, Case No. 1:09-cv-02033-MJS (E.D. Cal.) (dismissed 15 on November 3, 2011, for failure to state a claim and for failure to comply with the Court’s orders); (3) 16 Daniels v. Fresno County Jail, et al., Case No. 1:15-cv-00960-BAM (E.D. Cal.) (dismissed on October 17 3, 2016, for failure to state a claim and for failure to comply with the Court’s orders).2,3 18 The issue now becomes whether Plaintiff has met the imminent danger exception, which requires 19 Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which turns on 20 the conditions he faced at the time he filed his complaint on November 25, 2019. Andrews,

1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 22 23

24 2 See Harris v. Mangum,

(9th Cir. 2017) (“Accordingly, we hold that when (1) a district court dismisses a complaint on the ground that it fails to state a claim, (2) the court grants leave to amend, and (3) the plaintiff 25 then fails to file an amended complaint, the dismissal counts as a strike under § 1915(g).”)

26 3 The Court notes that case numbers 1:10-cv-00630-JLT (E.D. Cal.) and 1:09-cv-02033-MJS list Plaintiff’s prison identification number as CDCR G-46837, and case number 1:15-cv-00960-BAM as well as the instant case list the prison 27 identification as 0221869. However, based on a review of the dockets and pleadings in all of these cases the Court is satisfied that all of these actions were filed by the same Plaintiff who has been in and out of custody of CDCR and Fresno 28 1 as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a merits- 2 based review of the claims, the allegations of imminent danger must still be plausible. Id. at 1055. 3 Here, the Court finds that Plaintiff’s allegations fail to demonstrate imminent danger of serious 4 physical injury at the time of filing. Plaintiff contends that on November 12,2019, between 2:00 and 5 5:00 p.m., he woke from sleeping and was assaulted with a foreign object to the point of “bloodshed” 6 by another inmate. Plaintiff contends that officer Vasquez witnessed the incident. Plaintiff was not 7 provided any medical attention and no investigation was conducted. Plaintiff’s allegations which are 8 based on an isolated incident which took place on November 12, 2019, prior to filing of the instant 9 complaint do not demonstrate imminent danger of serious physical injury. In addition, there are no facts 10 to support that Plaintiff suffered from an ongoing pattern of misconduct. Accordingly, the imminent 11 danger exception to § 1915(g)’s three-strikes provision cannot and does not apply here. See Andrews, 12

; see also Medberry v. Butler,

(11th Cir. 1999) (finding failure to 13 protect allegations against prison officials who put an inmate convicted of sexual battery in general 14 population failed to meet imminent danger standard because the threat had ceased prior to filing the 15 complaint and there were no allegations that plaintiff was in imminent danger of serious physical injury 16 at the time he filed his complaint that that he was in jeopardy of any ongoing danger): Ashley v. 17 Dilworth,

(8th Cir. 1998) (“Allegations that the prisoner faced imminent danger in 18 the past are insufficient to trigger this exception to § 1915(g) and authorize the prisoner to pay the filing 19 fee on the installment plan.”). 20 II. 21 CONCLUSION AND RECOMMENDATIONS 22 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a District 23 Judge to this action. 24 Further, for the reasons explained above, it is HEREBY RECOMMENDED that: 25 1. Plaintiff’s motion to proceed in forma pauperis (ECF No. 2.) be denied; and 26 2. Plaintiff be required to pay the $400.00 filing fee within thirty (30) days of service of the 27 Court’s order adopting these Findings and Recommendations. 28 /// 1 These Findings and Recommendations will be submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of

(b)(). Within twenty-one (21) 3 || days after being served with these Findings and Recommendations, Plaintiff may file written 4 || objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 5 || Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 6 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler,

, 838 7 39 (9th Cir. 2014) (citing Baxter v. Sullivan,

(9th Cir. 1991)). 8 9 || IT IS SO ORDERED. Al (ee 10 || Dated: _ December 5, 2019 OF 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28