Hairston v. Curliss et al

Filing 4

FINDINGS and RECOMMENDATIONS Denying 2 Motion for Proceed In Forma Pauperis and Requiring Payment of Filing Fee in Full within Twenty-One Days signed by Magistrate Judge Michael J. Seng on 11/21/2014. Referred to Judge O'Neill; Objections to F&R due by 12/11/2014.(Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROBEY KURT HAIRSTON,

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Plaintiff,
v.
R. CURLISS, et al.,
Defendants.

CASE No. 1:14-cv-01760-LJO-MJS
FINDINGS AND RECOMMENDATIONS
DENYING MOTION TO PROCEED IN
FORMA PAUPERIS AND REQUIRING
PAYMENT OF FILING FEE IN FULL
WITHIN TWENTY-ONE DAYS
(ECF No. 2)
FOURTEEN
DEADLINE

(14)

DAY

OBJECTION

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Plaintiff Robey Kurt Hairston is a state prisoner proceeding pro se in this civil
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rights action filed pursuant to 42 U.S.C. § 1983. On November 7, 2014, Plaintiff filed a
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motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
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The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring

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a civil action . . . under this section if the prisoner has, on 3 or more occasions, while
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incarcerated or detained in any facility, brought an action or appeal in a court of the
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United States that was dismissed on the grounds that it is frivolous, malicious, or fails to
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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). Plaintiff has had three or more

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actions dismissed as frivolous, as malicious, or for failing to state a claim upon which
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relief maybe granted.1

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To meet the imminent danger exception, the complaint must plausibly allege “that

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the prisoner faced „imminent danger of serious physical injury‟ at the time of filing.”

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Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Plaintiff‟s allegations are

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fragmented and difficult to understand.

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complains of at least one instance of excessive force that occurred on September 28,

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2014, almost a month before the Complaint was filed. The allegation do not suggest

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Plaintiff faced imminent danger at the time he filed his complaint.

As far as the Court can decipher, Plaintiff

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The undersigned concludes that Plaintiff‟s in forma pauperis application should be

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denied because he accrued three or more strikes and was not under imminent danger of

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serious physical harm at the time this action was initiated. 28 U.S.C. § 1915(g). Plaintiff

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should be provided with the opportunity to pay the filing fee in full.

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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1.

Plaintiff's in forma pauperis application (ECF No. 2) should be DENIED,

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2.

Plaintiff should be required to pay the $400 filing fee in full within twenty-

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one days of adoption of these Findings and Recommendations, and

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3.

If Plaintiff fails to pay the $400 filing fee in full within twenty-one days of

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adoption of these Findings and Recommendations, all pending motions should be

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terminated and this action dismissed without prejudice.

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These Findings and Recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1).

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Within fourteen (14) days after being served with these Findings and Recommendations,

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any party may file written objections with the Court and serve a copy on all parties. Such

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The Court takes judicial notice of the following United States District Court cases: Hairston v. State of
California, et al., 5:14-cv-00765-UA-MAN (C.D. Cal.) (dismissed May 6, 2014 for, among other reasons,
failure to state a claim, no appeal filed); Hairston v. Bazanifh, et al., 8:10-cv-01652-UA-MLG (C.D. Cal.)
(dismissed November 8, 2010 for, among other reasons, failure to state a claim, no appeal filed); and
Hairston v. Brooks Bozanigh, et al., 8:10-cv-01630-UA-MLG (C.D. Cal.) (dismissed November 8, 2010 for,
among other reasons, failure to state a claim, no appeal filed). These strikes were final prior to the date
Plaintiff filed this action. Silva v. Di Vittorio, 658 F.3d 1090, 1098-1100 (9th Cir. 2011).

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a document should be captioned "Objections to Magistrate Judge's Findings and

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Recommendations." The parties are advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst,

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951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:

November 21, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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