(PC) Miller v. Montgomery

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA | Elijah Lee Miller, No. 2:23-cv-00994-KJM-DMC 12 Plaintiff, ORDER 13 v. Andrew Montgomery, 1S Defendant.

17 Plaintiff, a prisoner proceeding pro se, brings this civil rights action under 42 U.S.C. | § 1983. The matter was referred to a United States Magistrate Judge as provided by 28 U.S.C. | § 636(b)(1)(B) and Local Rule 302.

20 On July 8, 2024, the magistrate judge filed findings and recommendations, ECF No. 22, | which were served on all parties and which contained notice to all parties that any objections to | the findings and recommendations were to be filed within fourteen days. Plaintiff filed objections | to the findings and recommendations, ECF No. 24, and defendant filed a response, ECF No. 25.

24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this | court has conducted a de novo review of this case. Having reviewed the file, the court finds the | findings and recommendations to be supported by the record.

27 The court writes separately to clarify its reasons for adopting the recommendation to grant | defendant’s motion to revoke plaintiffs in forma pauperis status. ECF No. 19. The following four actions were dismissed as frivolous, malicious, or for failure to state a claim prior to the time this action was filed: Miller v. Montgomery, 2:23-cv-00100-TLN-EFB (E.D. Cal. 2023); Miller v. Park, 2:22-cv-01570-WBS-EFB (E.D. Cal. 2022); Miller v. California Dep’t of Corr. & Rehab., 2:22-cv-02249-DAD-KJN (E.D. Cal. 2023); Miller v. Cook, 2:23-cv-00042-WBS-AC (E.D. Cal. 2023). As explained in the findings and recommendations, under 28 U.S.C. § 1915(g), each prior action dismissed “on the ground that it is frivolous, malicious or fails to state a claim upon which relief may be granted” constitutes a strike. Because the plaintiff has at least four strikes, he is barred from proceeding in another civil action in forma pauperis “unless the prisoner is under imminent danger of serious physical injury.”

10 “The availability of the “imminent danger” exception to the three strikes rule “turns on the conditions a prisoner faced at the time the complaint was filed, not at some earlier or later time.”

12 Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Here, the allegations of physical injury are about incidents that occurred at an earlier time. Moreover, plaintiff does not allege there is an ongoing danger such that there is an imminent danger. See id. at 1056–57 (“[A] prisoner who alleges that prison officials continue with a practice that has injured him or others similarly situated in the past will satisfy the ‘ongoing danger’ standard and meet the imminence prong of the three-strikes exception.”). Here, the court finds the imminent danger exception to the three strikes rule does not apply.

19 Accordingly, IT IS HEREBY ORDERED that: 20 1. The findings and recommendations filed July 8, 2024, ECF No. 22, are adopted in 21 full.

22 2. Defendant’s motion to revoke plaintiff’s in forma pauperis status, ECF No. 19, is 23 GRANTED.

24 3. Plaintiff’s in forma pauperis status, ECF No. 2, is revoked.

25 4. Defendant’s motion to dismiss for failure to comply with Rule 8 and for failure to 26 state a claim, ECF No. 19, is DENIED.

27 5. Plaintiff shall pay the full $405.00 filing fees within 30 days of the date of this 28 order.

1 6. This matter is referred back to the assigned Magistrate Judge for further 2 proceedings.

3 | DATED: January 30, 2025.

STATES DISTRICT JUDGE