Moten v. Allison

Filing 22

ORDER ADOPTING 15 FINDINGS AND RECOMMENDATIONS to Deny Plaintiff's Application to Proceed In Forma Pauperis signed by Chief Judge Anthony W. Ishii on 07/05/2012. Filing Fee Due by 7/23/2012. (Flores, E)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE T. MOTEN,

Case No. 1:12-cv-00600 AWI JLT (PC)

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Plaintiff,

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS

Defendants.

(Docs. 6, 15).

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vs.
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K. ALLISON,
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Plaintiff is proceeding pro se and in forma pauperis with a civil action pursuant to 42

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U.S.C. § 1983. The matter was transferred to this Court from the Northern District of California

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on April 5, 2012 and later referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)

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and Local Rules 302 and 303. (Doc. 9). Before the matter was transferred, Plaintiff filed a

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motion for leave to proceed in forma pauperis and requested a hearing on imminent

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endangerment of life. (Docs. 6 and 7).

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On April 20, 2012, Magistrate Judge Thurston issued findings and recommendations to

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deny Plaintiff’s application to proceed in forma pauperis, pursuant to 28 U.S.C. § 1915(g), as

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Plaintiff had previously filed at least three actions that were dismissed as either frivolous,

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malicious, or failed to state a claim upon which relief may be granted. (Doc. 15). The Magistrate

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also found that Plaintiff failed to state any facts to show he is under imminent danger of serious

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physical injury.

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Plaintiff’s motion for a hearing on imminent danger was identical to the motion he filed in

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District Judge Ishii’s court in February of this year. (Compare Doc. 7 with 1:12-cv-00034 AWI-

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GSA, Doc. 5, and Moten, 2012 U.S. Dist. LEXIS 19429).

(Doc. 15).

The Magistrate’s Findings and Recommendations noted that

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Plaintiff was to file any objections to the Magistrate’s recommendations by May 14, 2012.

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(Doc. 15). On May 10, 2012, Plaintiff requested a 30-day extension of time to file his Objections.

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(Doc. 17). The Magistrate granted Plaintiff’s request on May 10, 2012 and served the order the

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same day. (Doc. 18). On June 13, 2012, Plaintiff filed Objections. (Doc. 21).

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Therefore, in accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Britt v. Simi

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Valley United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), the Court has conducted a de novo

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review of the case. Having carefully, reviewed the entire file, the Court finds that the findings

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and recommendations are supported by the record and by proper analysis. The court agrees with

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the Magistrate Judge that Plaintiff is subject to 42 U.S.C. Section 1915(g), which provides that

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“[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or

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more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in

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a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or

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fails to state a claim upon which relief may be granted, unless the prisoner is under imminent

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danger of serious physical injury.” 28 U.S.C. § 1915(g). The determination of whether Plaintiff

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is under imminent danger of serious physical injury is made based on the conditions at the time

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the complaint is filed, Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007), and the

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allegation of imminent danger must be plausible, id. at 1054. In light of the fact the complaint’s

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allegations concern alleged violations at administrative hearings, the court agrees Petitioner has

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not made an adequate showing under Section 1915(g).

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed April 20, 2012 are ADOPTED IN FULL;

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2. Plaintiff’s motion to proceed in forma pauperis is DENIED;

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3. Plaintiff is required to pay the filing fee in full within 14 days of service of the Court’s
order adopting the Magistrate’s Findings and Recommendations; and

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4. Failure to timing pay the filing fee in full in accordance with this Order will result in a

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dismissal of the entire matter.

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IT IS SO ORDERED.

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Dated: July 5, 2012

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CHIEF UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

0m8i788

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