(PC) Revis v. Moore

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA ANDRE L. REVIS, Case No. 1:19-cv-00034-DAD-SKO (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO GRANT DEFENDANTS’ MOTION TO 13 v. REVOKE PLAINTIFF’S IN FORMA PAUPERIS STATUS J. MOORE, et al., (Doc. 40) 15 Defendants.

21-DAY DEADLINE 17 Before the Court is Defendants’ motion to revoke Plaintiff’s in forma pauperis status.

18 (Doc. 40.) Because Plaintiff accrued more than three “strikes” under 28 U.S.C. § 1915(g) prior to filing suit, and failed to show that he was under imminent danger of serious physical injury at the time he filed his complaint, the Court recommends that Defendants’ motion be granted.

21 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 22 28 U.S.C. § 1915 governs in forma pauperis proceedings. The statute provides, “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 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).

1 II. DISCUSSION 2 Per Defendants’ request (Doc. 40-1), the Court takes judicial notice of four of Plaintiff’s prior actions that were dismissed for failure to state a claim on which relief can be granted1: (1) Revis v. Enenmoh, et al., No. 1:12-cv-01988-SAB (E.D. Cal. Apr. 30, 2014); (2) Revis v. Jarvis, et al., No. 1:13-cv-01197-LJO-DLB (E.D. Cal. Sept. 17, 2014); (3) Revis v. Salinas, et al., No. 1:13-cv-00059-AWI-DLB (E.D. Cal. Jan. 29, 2015); and (4) Revis v. Diaz, et al., No. 1:15- cv-00378-DAD-BAM (E.D. Cal. Jan. 10, 2018). Plaintiff does not meaningfully dispute that each of these cases was dismissed for failure to state a claim and, therefore, counts as strikes under 28 9 U.S.C. § 1915(g). (See generally Doc. 41.) Given that the cases were dismissed before Plaintiff initiated the current action on January 8, 2019, Plaintiff is precluded from proceeding in forma pauperis in this action unless he was under imminent danger of serious physical injury at the time he filed suit. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007).

13 In his complaint, Plaintiff alleges officials at Substance Abuse Treatment Facility and State Prison, Corcoran, denied him kosher meals and participation in the prison’s “religious diet program.” (Doc. 1 at 4-7.) Plaintiff does not allege, nor do his allegations suggest, that he was under imminent danger of serious physical injury at the time he filed suit. Therefore, the “imminent danger” exception to the “three strikes” rule does not apply, and Plaintiff may not proceed in forma pauperis in this action.

19 Defendants contend that, “[w]hen a court denies a prisoner leave to proceed in forma pauperis . . ., the proper procedure is to dismiss the complaint without prejudice.” (Doc. 40 at 4.)

21 While the Eleventh Circuit has explicitly held as much, Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002), the Ninth Circuit has not, Hardney v. Turner, No. 2:14-cv-02962-MCE-DBP, 2017 WL 342469, at *6 (E.D. Cal. 2017), Rider v. Parente, No. 2:09-cv-00637-MCE-DAD, 2011 24 WL 2745986, at *5 n.7 (E.D. Cal. 2011); but see Tierney v. Kupers, 128 F.3d 1310, 1311-12 (9th Cir. 1997) (affirming dismissal upon denial of IFP by the district court). Here, the Court finds it appropriate to grant Plaintiff an opportunity to pay the filing fee, given that this case has been ongoing for over two years. If Plaintiff fails to pay the fee, then this case should be dismissed.

1 III. RECOMMENDATIONS 2 Based on the foregoing, the Court RECOMMENDS that: 3 1. Defendants’ motion to revoke Plaintiff’s in forma pauperis status (Doc. 40) be 4 GRANTED; and, 5 2. Plaintiff be allowed 30 days from the date of adoption of these Findings and 6 Recommendations to pay the filing fee in full.

7 These Findings and Recommendations will be submitted to the United States District Judge assigned to this case, pursuant to 28 U.S.C. § 636(b)(l). Within 21 days of the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

16 Dated: October 28, 2021 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE