(PC) Melger v. Newsom

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS JOSEPH MELGER, No. 2:23-cv-00931-EFB (PC) 12 Plaintiff, 13 v. ORDER GAVIN NEWSOM, 15 Defendant.

17 Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights complaint.

18 ECF No. 1. He seeks leave to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915(a). For the reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma pauperis.

21 A prisoner may not proceed in forma pauperis: 22 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 23 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 24 serious physical injury.

26 28 U.S.C. § 1915(g). A review of court records reveals that it was determined in Melger v. Sacramento Sheriff Department, No. 2:21-cv-01611-WBS-AC (E.D. Cal. Oct. 6, 2021), that plaintiff has “struck out” under 28 U.S.C. § 1915(g).

1 The section 1915(g) exception applies if the complaint makes a plausible allegation that | the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. || § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Here, the complaint does | not allege that plaintiff faced an imminent danger of serious physical injury at the time plaintiff || filed the complaint. See ECF No. 1 (alleging that California’s Three Strikes Law “is a || discrimination based law”). Plaintiff's application for leave to proceed in forma pauperis must || therefore be denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in | order to proceed with this action.

9 Accordingly, it is hereby ORDERED that the Clerk of the Court shall randomly assign a || United States District Judge to this action.

11 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma || pauperis, it is RECOMMENDED that: 13 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be denied; and 14 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any || order adopting these findings and recommendations and be warned that failure to do so will result || in the dismissal of this action.

17 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)(1). 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.” 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).

25 | Dated: July 6, 2023. □□ PDEA 26 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE