1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONY BLACKMAN, No. 1:24-cv-00983 GSA (PC) 12 Plaintiff, ORDER AND FINDINGS AND RECOMMENDATIONS 13 v. ORDER DIRECTING CLERK OF COURT TO 14 BRYAN D. PHILLIPS, et al., ASSIGN DISTRICT JUDGE TO THIS MATTER 15 Defendants. ORDER RECOMMENDING THAT: 16 (1) PLAINTIFF’S APPLICATION TO 17 PROCEED IN FORMA PAUPERIS BE DENIED PURSUANT TO

(g) 18 (ECF No. 2) 19 (2) PLAINTIFF BE REQUIRED TO PAY 20 FILING FEE IN FULL PRIOR TO PROCEEDING ANY FURTHER WITH THIS 21 ACTION 22 PLAINTIFF’S OBJECTIONS DUE IN FOURTEEN DAYS 23

24 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to

and 25 has requested authority pursuant to

to proceed in forma pauperis. ECF Nos. 1, 26 2, 5. The matter was referred to a United States Magistrate Judge pursuant to

636(b)(1)(B) and Local Rule 302. 28 1 For the reasons stated below, the undersigned will recommend consistent with

1915(g): (1) that Plaintiff’s application to proceed in forma pauperis be denied, and (2) that he be 3 required to pay the filing fee in full prior to proceeding any further with this matter. The Clerk of 4 Court will also be ordered to randomly assign a District Judge to this matter. 5 I. BACKGROUND 6 On October 8, 2010, in Blackman v. Rocha, No. 1:10-cv-01824 LJO SMS (“Rocha”), 7 Plaintiff was identified as a three strikes litigant within the meaning of

(g), and it 8 was determined that he did not meet the imminent danger exception. Rocha, ECF No. 4. The 9 Rocha Court took judicial notice of the following cases and identified them as strikes: 10 • Blackman v. Hartwell, No. 1:99-cv-05822 REC HGB (E.D. Cal. Mar. 12, 2001) 11 (dismissed for failure to state a claim); 12 • Blackman v. Medina, No. 3:05-cv-05390 SI (N.D. Cal. Mar. 13, 2006 (dismissed for 13 failure to state a claim); 14 • Blackman v. Variz, No. 3:06-cv-06398 SI (N.D. Cal. Dec. 18, 2006) (dismissed for 15 failure to state a claim), and 16 • Blackman v. Taxdahl, No. 1:04-cv-06389 AWI LJO (E.D. Cal. May 18, 2007) 17 (dismissed for failure to state a claim). 18 Rocha, ECF No. 4 at 1-2, n.1. As a result, Plaintiff’s case was dismissed without prejudice to 19 Plaintiff refiling the matter along with the full filing fee. See

. 20 On August 21, 2024, Plaintiff’s complaint along with an application to proceed in forma 21 pauperis were docketed. ECF Nos. 1, 2. Upon review of the Rocha Court’s determination that 22 Plaintiff is a three strikes litigant, the undersigned ordered Plaintiff to show cause why he should 23 not be required to pay the filing fee in full prior to proceeding any further with this action. See 24 ECF No. 6. As an alternative to filing the showing of cause, Plaintiff was also given the 25 opportunity to pay the filing fee in full. He was given twenty-one days to take either course of 26 action and was cautioned that failure to comply with the Court’s order within the time allotted 27 might result in a recommendation that this matter be dismissed.

. 28 1 To date, Plaintiff has not filed a showing of cause, nor has he filed a request for an 2 extension of time to do so—nor has Plaintiff paid the filing fee in full. He has not responded to 3 the Court’s order in any way. 4 II. DISCUSSION 5 A. Applicable Law 6

(g) states: 7 In no event shall a prisoner bring a civil action or appeal a judgment in a civil action 8 or proceeding under this section if the prisoner has, on 3 or more prior occasions, 9 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, 10 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 11

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(g). 13 B. Analysis 14 A three strikes litigant must pay the filing fee for a complaint in full prior to proceeding 15 any further in an action unless he is in imminent danger of serious physical harm at the time he 16 files the complaint, and the imminent harm is related to the violations of right alleged that are 17 alleged in the complaint. See

(g) (imminent danger requirement); Ray v. Lara, 18

(9th Cir. 2022) (nexus with alleged violations of right requirement). To the 19 extent that the Court is able to understand Plaintiff’s complaint, it does not appear that he has 20 made a plausible assertion in the complaint that he is in imminent danger of serious physical 21 harm. See generally ECF No. 1. This fact, as well as the fact that Plaintiff has neither filed a 22 showing of cause that disputes his three strikes litigant status, nor paid the filing fee in full, 23 warrants an order that: (1) denies Plaintiff’s application to proceed in forma pauperis, and (2) 24 requires Plaintiff to pay the filing fee in full prior to proceeding any further with this action. See 25 generally

(g). 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall randomly assign a 27 District Judge to this matter. 28 1 IT IS FURTHER RECOMMENDED that: 2 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be DENIED, and 3 2. Consistent with Plaintiff’s three strikes litigant status as defined in

1915(g), Plaintiff be ordered to pay the filing fee in full prior to proceeding any further with this 5 action. 6 These findings and recommendations are submitted to the United States District Judge 7 assigned to the case, pursuant to the provisions of

(b)(l). Within fourteen days 8 after being served with these findings and recommendations, Plaintiff may file written objections 9 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 10 and Recommendations.” Plaintiff is advised that failure to file objections within the specified 11 time may waive the right to appeal the District Court’s order. Martinez v. Ylst,

(9th Cir. 1991). 13 14 IT IS SO ORDERED. 15

16 Dated: September 29, 2024 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17

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