Pierce v. Wagner et al
Filing
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ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS to Deny Plaintiff's 2 Request to Proceed In Forma Pauperis signed by District Judge Dale A. Drozd on 03/07/2016. (Flores, E)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SEAVON PIERCE,
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Plaintiff,
v.
No. 1:16-cv-00045-DAD-JLT (PC)
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS TO DENY
PLAINTIFF‟S REQUEST TO PROCEED IN
FORMA PAUPERIS
MIMS, et al.,
(Doc. Nos. 2, 4, 5)
Defendants.
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Plaintiff, Seavon Pierce, is a state prisoner proceeding pro se in this civil rights action
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pursuant to 42 U.S.C. ' 1983. (Doc. No. 1.) The matter was referred to a United States
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Magistrate Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. On January 11,
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2016, plaintiff filed a motion to proceed in forma pauperis. (Doc. No. 2.)
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On January 27, 2016, the assigned magistrate judge issued findings and recommendations
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recommending that plaintiff‟s motion to proceed in forma pauperis in this action be denied. That
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recommendation was based on the magistrate judge‟s finding that plaintiff was barred from
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proceeding in forma pauperis in this action under 28 U.S.C. §1915(g) since he had at least three
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prior actions dismissed as frivolous, malicious or for failure to state a claim upon which relief
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could be granted prior to the filing of this action and that his current allegations failed to show
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that he was in imminent danger of serious physical injury at the time he filed suit. (Doc. No. 4.)
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The findings and recommendations were served on plaintiff and contained notice that objections
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thereto were due within thirty days. (Id.) Plaintiff filed timely objections. (Doc. No. 5.)
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As was accurately stated in the magistrate judge‟s findings and recommendations, a
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prisoner may not bring a civil action under 28 U.S.C. §1915(g) if they have, “on 3 or more prior
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occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of
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the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state
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a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious
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physical injury.” (Doc. No. 4 at 1) (quoting 28 U.S.C. § 1915(g)).1 As also accurately noted by
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the assigned magistrate judge, plaintiff had suffered at least three dismissals qualifying as strikes2
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under § 1915(g) prior to his filing of this action. Thus, plaintiff may only proceed under §
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1915(g) only if his allegations satisfy the imminent danger of serious physical injury exception.
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The Ninth Circuit has stated that “requiring a prisoner to „allege [ ] an ongoing danger‟ . . . is the
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most sensible way to interpret the immanency requirement.” Andrews v. Cervantes, 493 F.3d
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1047, 1056 (9th Cir. 2007) (citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 2003)). In
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Andrews the Ninth Circuit held that the imminent danger faced by the prisoner need not be
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limited to the time frame of the filing of the complaint, but that the exception may be satisfied by
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alleging that the imminent danger faced by the plaintiff is an ongoing one. See Andrews at 1053.
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Here, the assigned magistrate found that the allegations in plaintiff‟s complaint and in his
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motion — that defendants are failing in their duty to report and investigate various crimes
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involving President Obama allegedly amounting to concealment along with other largely
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nonsensical allegations — do not satisfy the imminent danger exception under § 1915(g). In his
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objections to the findings and recommendations, plaintiff asserts that the magistrate judge
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improperly exercised jurisdiction over this action and that the Prisoner Litigation Reform Act, 28
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U.S.C. 1915, does not apply in this case. (Doc. No. 5.) However, § 1915 is the statute under
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which a litigant may apply for in forma pauperis status to be relieved of prepayment of the full
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Dismissals on any of the three enumerated grounds are colloquially referred to as “strikes.”
See Seavon Pierce v. Fernando Gonzales, et al., 1:10-cv-00285-JLT (E.D. Cal.) (dismissed on
December 3, 2012 for failure to state a claim); Seavon Pierce v. Lancaster State Prison, 2:13-cv08126-UA-CW (C.D. Cal.) (dismissed on December 3, 2013 as frivolous, malicious, and for
failure to state a claim); and Seavon Pierce v. Warden of Lancaster, 2:13-cv-01939-UA-CW
(C.D. Cal.) (dismissed on March 28, 2013 as frivolous, malicious, and for failure to state a claim).
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filing fee. This is the statute under which plaintiff‟s application to proceed in forma pauperis
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must be considered despite his objection. Thus, plaintiff must meet the requirements of § 1915(g)
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to be granted in forma pauperis status in this, or any other civil action he may bring while
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incarcerated. Plaintiff neither argues, nor cites any authority to show, that any of his allegations
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meet the imminent danger requirement. Plaintiff has not attempted to establish that he is
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otherwise entitled to be granted in forma pauperis status in this action and the court finds no basis
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upon which his application could be properly granted.
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a
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de novo review of this case. Having carefully reviewed the entire file, the court finds the findings
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and recommendations to be supported by the record and by proper analysis.
Accordingly, for the reasons set forth above:
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1. The Findings and Recommendations (Doc. No. 4), issued on January 27, 2016, are
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ADOPTED in full;
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2. Plaintiff‟s motion to proceed in forma pauperis (Doc. No. 2) is DENIED;
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3. Within thirty days from the date of service of this order, plaintiff is required to pay
in full the $400.00 filing fee for this action; and
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4. Plaintiff‟s failure to comply with this order shall result in the dismissal of this action
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without prejudice.
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IT IS SO ORDERED.
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Dated:
March 7, 2016
UNITED STATES DISTRICT JUDGE
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