(PC) Melger v. Newsom

6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS JOSEPH MELGER, Case No. 2:23-cv-00603-JDP (PC) 10 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 11 v. GAVIN NEWSOM, et al., 13 Defendants.

19 Plaintiff has filed a complaint, ECF No. 1, and a request to proceed in forma pauperis, ECF No. 2. He is, however, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g).

21 He has, in other words, filed three cases that have been dismissed for failure to state a claim.

22 Plaintiff was identified as a three-striker in Melger v. Sacramento Sheriff Department, No. 2:21- cv-01611-WBS-AC, at ECF Nos. 5 & 8.1 Plaintiff might still be eligible to proceed in forma pauperis if his complaint made a showing of imminent physical danger. The allegations in his In that case, Judge Claire found that plaintiff had filed three cases dismissed for failure to state a claim: (1) Melger v. Wesp, Case No. 2:16-cv-01103-KJN (E.D. Cal.); (2) Melger v. Obama, Case No. 2:16-cv-01527-AC (E.D. Cal.); and (3) Melger v. Becerra, Case No. 2:18-cv- 03264-WBS-CKD (E.D. Cal.). Here recommendations were adopted by Judge Shubb. ECF No. 8.

1 | complaint are inadequate to make this showing.

2 Plaintiff alleges that his rights were violated when, in March 2022, he attempted to set up | atent on private property and was told to leave. ECF No. 1 at 3-4. Some time later, he went to | Placer County Health and Human Services to apply for welfare, but found that he was eligible | only for two hundred dollars a month in rent assistance—not enough to get an apartment. Jd. at 4.

6 | These allegations, taken as true, do not establish that plaintiff is in imminent danger of physical | harm.

8 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge | to this action.

10 Further, it is RECOMMENDED that plaintiff's application to proceed in forma pauperis, | ECF No. 2, be DENIED and plaintiff be directed to tender the filing fee within thirty days of any | order adopting these recommendations.

13 These findings and recommendations are submitted to the United States District Judge | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days | after being served with these findings and recommendations, any party may file written | objections with the court and serve a copy on all parties. Such a document should be captioned || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the | objections shall be served and filed within fourteen days after service of the objections. The | parties are advised that failure to file objections within the specified time may waive the right to | appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez | v. Yist, 951 F.2d 1153 (9th Cir. 1991).

73 IT IS SO ORDERED.

24 ( q Sty — Dated: _ June 1, 2023 ow—— 25 JEREMY D. PETERSON 26 UNITED STATES MAGISTRATE JUDGE