(PC) Melger v. A Well Regulated Militia

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA THOMAS JOSEPH MELGER, No. 2:23-cv-1020 CKD P 12 Plaintiff, 13 v. ORDER AND A WELL REGULATED MILITIA, et al., FINDINGS AND RECOMMENDATIONS 15 Defendants.

Plaintiff, a state prisoner proceeding pro se, has filed a civil rights complaint. He seeks leave to proceed in forma pauperis pursuant to 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.

A prisoner may not proceed in forma pauperis: if the prisoner has, on 3 or more prior occasions, while incarcerated 21 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 22 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 23 physical injury.

24 28 U.S.C. § 1915(g).

25 A review of court records reveals that it was determined in Melger v. Sacramento Sheriff Dept., No. 2:21-cv-1611 WBS AC (E.D. Cal. Oct. 6, 2021), that plaintiff has “struck out” under 28 U.S.C. § 1915(g).

28 ///// 1 The section 1915(g) exception applies if a 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. Plaintiff's application for leave to proceed in forma pauperis || must therefore be denied pursuant to § 1915(g) and plaintiff must submit the appropriate filing fee || in order to proceed with this action.

8 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district || court judge to this case.

10 IT IS HEREBY RECOMMENDED that: 11 1. Plaintiff's application to proceed in forma pauperis (ECF No. 2) be denied; and 12 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any || order adopting these findings and recommendations.

14 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, plaintiff may file written || objections with the court. 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).

21 | Dated: August 21, 2023 i / dle i 22 CAROLYNK. DELANEY 23 UNITED STATES MAGISTRATE JUDGE || Iks melg1020.3ks