Garcia v. Garcia et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Plaintiff's In Forma Pauperis Status be REVOKED; this aciton be DISMISSED without prejudice to re-filing accompanied by the $400.00 Filing Fee re 1 Prisoner Civil Rights Complaint filed by Edwin Garcia ; referred to Judge Drozd,signed by Magistrate Judge Stanley A. Boone on 08/24/2016. Objections to F&R due (30-Day Deadline) (Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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EDWIN O. GARCIA,
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Plaintiff,
v.
G. MUNOZ, et al.,
Defendants.
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Case No.: 1:16-cv-00470-DAD-SAB-PC
FINDINGS AND RECOMMENDATION THAT
PLAINTIFF’S IN FORMA PAUPERIS STATUS BE
REVOKED, AND THAT THIS ACTION BE
DISMISSED WITHOUT PREJUDICE TO
REFILING WITH SUBMISSION OF $400.00
FILING FEE
(ECF NO. 2)
OBJECTIONS DUE IN THIRTY DAYS
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Plaintiff Edwin Garcia, a state prisoner proceeding pro se, filed this action pursuant to 42
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U.S.C. § 1983. This matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. §
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636(b)(1)(B) and Local Rule 302. This action proceeds on the complaint filed on April 5, 2016. On
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April 6, 2016, Plaintiff filed a motion for leave to proceed in forma pauperis. (ECF No. 2.) On April
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11, 2016, the Court granted Plaintiff’s motion for leave to proceed in forma pauperis (ECF No. 5.)
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Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a prisoner
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bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while
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incarcerated or detained in any facility, brought an action or appeal in a court of the United States that
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was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief
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may be granted, unless the prisoner is under imminent danger of serious physical injury.”1
The Court has reviewed Plaintiff’s complaint and his allegations do not satisfy the imminent
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danger exception to section 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007).
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DESCRIBE CLAIMS. (ECF No. 1, pp. 2-5.). Plaintiff, an inmate currently in the custody of the
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California Department of Corrections and Rehabilitation (CDCR) at CSP Corcoran, brings this action
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against Defendant correctional officials employed by the CDCR at Wasco State Prison, where the
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events at issue occurred. Plaintiff alleges that on February 15, 2012, he was subjected to excessive
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force and sexual assault (Defendants grabbed Plaintiff’s genital area) by Defendants because he
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refused to turn down the volume on his television. Plaintiff alleges that he was falsely charged with
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assaulting staff. Plaintiff was told that because he complained that Defendants sexually assaulted him,
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they had to falsify charges of assault. Plaintiff makes no allegations concerning any imminent danger
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of serious physical injury. The conduct at issue occurred in 2012 at Wasco State Prison. Therefore,
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Plaintiff has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and must
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pay the $400.00 filing fee if he wishes to litigate this claim.
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Accordingly, IT IS HEREBY RECOMMENDED that:
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1.
Plaintiff’s in forma pauperis status be revoked; and,
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2.
This action be DISMISSED without prejudice to re-filing accompanied by the $400.00
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filing fee.
These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within thirty (30) days
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after being served with these Finding and Recommendations, the parties may file written objections
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with the Court. The document should be captioned “Objections to Findings and Recommendations.”
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The Court takes judicial notice of the following United States District Court cases: Edwin Garcia v. Mark
Romero, et al., 2:15-cv-08810-DOC-DFM, (C. D. Cal. November 12, 2016 (dismissed on January 13, 2016 for
frivolousness, failure to state a claim, and as malicious); Edwin Garcia v. Judge Henry Hall, 2:15-CV-08642DOC DFM (C.D. Cal. November 5, 2015) (dismissed on November 17, 2015 for frivolousness, failure to state a
claim, and as malicious); and Edwin Garcia v. L. A. County Sheriff’s Office, et al.,,2:15-CV-08645-DOC-DFM
(C. D.Cal. November 5, 2015)(dismissed on November 17, 2015, for frivolousness, failure to state a claim, and
as malicious).
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The parties are advised that failure to file objections within the specified time may result in the waiver
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of rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014)(citing Baxter v.
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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
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IT IS SO ORDERED.
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Dated:
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August 24, 2016
UNITED STATES MAGISTRATE JUDGE
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