1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALLEN HAMMLER, No. 1:24-cv-01359-SAB (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT 13 v. JUDGE TO THIS ACTION 14 T. SANDERS, et al., FINDINGS AND RECOMMENDATION RECOMMENDING PLAINTIFF PAY THE 15 Defendants. FILING FEE FOR THIS ACTION 16 17 18 Plaintiff is proceeding pro se in this action filed pursuant to

. 19 On November 6, 2024, Plaintiff filed the complaint commencing this action. (ECF No. 1.) 20 Plaintiff has not submitted an application to proceed in forma pauperis pursuant to

1915 or paid the $405.00 filing fee for this action. However, a review of the Court’s electronic 22 filing system reflects that Plaintiff has suffered three of more strikes under

(g), 23 and is not allowed to proceed in forma pauperis unless he was under imminent danger of serious 24 physical injury at the time of filing the complaint. 25 I. 26 DISCUSSION 27 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous 28 prisoner complaints and appeals.” Silva v. Di Vittorio,

(9th Cir. 1 2011). Pursuant to the PLRA, the in forma pauperis statue was amended to include section 2 1915(g), a non-merits related screening device which precludes prisoners with three or more 3 “strikes” from proceeding in forma pauperis unless they are under imminent danger of serious 4 physical injury.

(g); Andrews v. Cervantes,

(9th Cir. 5 2007). The statute provides that “[i]n no event shall a prisoner bring a civil action … under this 6 section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any 7 facility, brought an action or appeal in a court of the United States that was dismissed on the 8 grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, 9 unless the prisoner is under imminent danger of serious physical injury.”

(g). 10 A review of the actions filed by Plaintiff reveals that he is subject to

(g) 11 and is precluded from proceeding in forma pauperis unless Plaintiff, was, at the time the 12 complaint was filed, under imminent danger of serious physical injury. The Court takes judicial 13 notice1 of the following United States District Court cases: (1) Hammler v. Director of CDCR, 14 No. 1:17-cv-00097-NJV (N.D. Cal.) (dismissed on April 27, 2017 for failure to file an amended 15 complaint, following a screening order dismissing complaint for failure to state a claim); (2) 16 Hammler v. Hudson, No. 2:16-cv-01153-JAM-EFB (E.D. Cal.) (dismissed on May 17, 2019 after 17 defendants’ motion to dismiss was granted because plaintiff’s failure to exhaust administrative 18 remedies was apparent on the face of the complaint and attachments thereto);2 (3) Hammler v. 19 Hough, No. 3:18-cv-01319-LAB-BLM (S.D. Cal.) (dismissed on May 24, 2019 for failure to state 20 a claim and as frivolous); (4) Hammler v. Director of CDCR, No. 1:17-cv-01949-MCE-DB (PC) 21 (E.D. Cal.) (dismissed on March 25, 2020 after defendant’s motion to dismiss was granted as 22 claims were frivolous); (5) Hammler v. Baugham, No. 2:19-cv-00245-TLN-CKD (PC) (E.D. 23 Cal.) (dismissed on May 21, 2020 for failure to state a claim); (6) Hammler v. Oliveira, No. 1:19-

24 1 Judicial notice may be taken of court records. Valerio v. Boise Cascade Corp.,

, 634 n.1 (N.D. Cal. 1978). 25 2 See Harris v. Mangum,

(9th Cir. 2017) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is 26 whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.” (citation and internal quotation marks omitted)); El-Shaddai v. Zamora,

(9th Cir. 2016) (stating that a dismissal for 27 failure to exhaust administrative remedies counts as a strike under § 1915(g) if the failure to exhaust is apparent from the face of the complaint). 28 1 cv-00417-DAD-JLT (PC) (E.D. Cal.) (dismissed on June 4, 2020 for failure to state a claim); (7) 2 Hammler v. State of California, No. 1:20-cv-00630-DAD-GSA (PC) (E.D. Cal.) (dismissed on 3 October 30, 2020 because plaintiff’s failure to exhaust administrative remedies was apparent on 4 the face of complaint); and (8) Harris v. Katz, No. 2:19-cv-00467-TLN-CKD (PC) (E.D. Cal.) 5 (dismissed on January 15, 2021 for failure to state a claim). 6 The issue now becomes whether Plaintiff has met the imminent danger exception, which 7 requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and 8 which turns on the conditions he faced at the time he filed his complaint on October 24, 2024 9 (with application of the mailbox rule). Andrews,

. Conditions which 10 posed imminent danger to Plaintiff at some earlier time are immaterial, as are any subsequent 11 conditions.

. While the injury is merely procedural rather than a merits-based review 12 of the claims, the allegations of imminent danger must still be plausible.

. 13 Here, the Court finds that Plaintiff’s allegations fail to demonstrate imminent danger of 14 serious physical injury at the time of filing. In the instant complaint, Plaintiff alleges that he was 15 subjected to retaliation, denied mental health treatment, improperly elevated his level of care, 16 denied his legal materials, and some of his personal property was destroyed at Corcoran State 17 Prison over three years ago and Plaintiff is now (and at the time of filing) housed at a different 18 prison. (ECF No. 1.) Plaintiff has alleged no facts to establish that he “faced ‘imminent danger 19 of serious physical injury’ at the time of filing.” See Andrews,

(noting § 20 1915(g)’s exception for IFP complaints which “make[ ] a plausible allegation that the prisoner 21 faced ‘imminent danger of serious physical injury’ at the time of filing.”); see also, Winfield v. 22 Schwarzenegger, No. 2:09–cv–0636–KJN–P,

, at *2 (E.D. Cal. Aug. 27, 2010) 23 (“At the time of filing the operative ... complaint, plaintiff was incarcerated at [CSP–Sacramento]; 24 thus, he is not facing imminent danger of serious physical injury based on allegations against 25 defendant ... at San Quentin State Prison.”). Therefore, Plaintiff does not establish an exception 26 to the three-strikes rule of § 1915(g), and he is precluded from proceeding in forma pauperis and 27 must pay the filing fee for this action to proceed. 28 II. 1 CONCLUSION AND RECOMMENDATIONS 2 Accordingly, the Clerk of the Court is HEREBY DIRECTED to randomly assign a 3 | District Judge to this action. 4 Further, it is HEREBY RECOMMENDED that, pursuant to

(g), Plaintiff 5 | not be allowed to proceed in forma pauperis and instead be directed to pay the $405.00 filing fee 6 | in full if he wishes to proceed with this action. 7 These Findings and Recommendations will be submitted to the United States District 8 | Judge assigned to the case, pursuant to the provisions of

(b)(1). Within fourteen 9 | (14) days after being served with these Findings and Recommendations, Plaintiff may file written 10 | objections with the Court, limited to 15 pages, including exhibits. The document should be 11 || captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is 12 | advised that failure to file objections within the specified time may result in the waiver of rights 13 | on appeal. Wilkerson v. Wheeler,

(9th Cir. 2014) (citing Baxter v. 14 | Sullivan,

(9th Cir. 1991)). 15 16 IT IS SO ORDERED. DAM Le 17 | Dated: _November 7, 2024 __ oO ES STANLEY A. BOONE 18 United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28