Cohea v. Pacillas et al

Filing 13

ORDER Adopting 11 FINDINGS AND RECOMMENDATIONS to REVOKE In Forma Pauperis Status and DIRECT Plaintiff to PAY Filing Fee in Full; Fourteen Day Deadline signed by District Judge Anthony W. Ishii on 12/21/2016. (Sant Agata, S)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF CALIFORNIA 4 5 DANNY JAMES COHEA, et al., 6 Plaintiffs, 7 8 CASE No. 1:16-cv-0949-AWI-MJS (PC) ORDER ADOPTING FINDINGS & RECOMMENDATIONS TO REVOKE IN FORMA PAUPERIS STATUS AND DIRECT PLAINTIFF TO PAY FILING FEE IN FULL v. A. PACILLAS, et al., 9 Defendants. (ECF NO. 11) 10 FOURTEEN DAY DEADLINE 11 12 This is a civil rights action brought under 42 U.S.C. § 1983. The complaint 13 identifies three incarcerated individuals as plaintiffs, Danny James Cohea, Raymond 14 George Glass, and R.J. Dupree. Only Cohea has signed the complaint and provided 15 contact information. Further, after an order was issued for the submission of an in forma 16 pauperis application, only Cohea submitted an application. 17 Cohea’s in forma pauperis motion was granted on September 8, 2016. See Doc. No. 9. 18 On November 2, 2016, the magistrate See Doc. Nos. 5, 6. judge issued a 19 Findings and Recommendations (“F&R”) to revoke Cohea’s in forma pauperis status and 20 direct him to pay the filing fee in full. See Doc. No. 11. The F&R found that Cohea was 21 subject to the 3-strikes provision of 28 U.S.C. § 1915(g), and the Complaint did not 22 demonstrate imminent danger. See id. On November 22, 2016, Cohea’s objections 23 were filed by the Clerk. See Doc. No. 12. No other filings have been made in this case. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the Court has Cohea’s objections are unnecessarily long 25 conducted a de novo review of this case. 26 (70 pages) and repetitive.1 However, the principal objections appear to be that Plaintiff 27 28 1 The F&R was only 4 pages. 1 1 should not be directed to pay the previously ordered $350 plus the now applicable $400 2 filing fee (totaling $750 in filing fees), the cases identified in the F&R as “strikes” are not 3 really “strikes” and the “imminent danger at the time of filing” rule is simply a “judge 4 made rule,” and the F&R incorrectly sweeps aside plaintiffs Glass and Dupree. The 5 Court is not persuaded by Cohea’s objections. 6 First, Cohea will not be directed to pay a total of $750. Once Plaintiff was granted 7 in forma pauperis status, he was responsible for a filing fee of $350. With the revocation 8 of in forma pauperis status, the reduced $350 filing fee no longer applies. Instead, 9 Plaintiff is now responsible for paying a full filing fee of $400. As of the date of this 10 order, no funds from or on behalf of Cohea have been received by the Court. Therefore, 11 with the adoption of the F&R, Plaintiff will be required to pay a total of $400. 12 Second, the Ninth Circuit has held that the “imminent danger” requirement of 28 13 U.S.C. § 1915(g) means “imminent danger at the time of filing.” 14 Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2008). The Court is bound to follow this 15 holding, despite Cohea’s characterization of Andrew’s holding as a “judge made rule.” 16 Further, the Ninth Circuit has determined that Cohea is subject to § 1915(g)’s three- 17 strikes provision. 18 Therefore, the F&R correctly applied a “three-strikes” analysis to Cohea. See Andrews v. See Cohea v. Grannis, 585 Fed. Appx. 375 (9th Cir. 2014). 19 Third, with respect to Cohea’s arguments regarding Glass and Dupree, Cohea is 20 not in a position to make arguments for these individuals. A non-attorney pro se plaintiff 21 like Cohea may not represent any other party in a lawsuit. See Simon v. Hartford Life & 22 Accident Ins. Co., 546 F.3d 661, 664 (9th Cir. 2008); McShane v. United States, 366 23 F.2d 286, 288 (9th Cir. 1966). Therefore, Cohea’s objections on behalf of Glass and 24 Dupree are improper and will not be entertained. See id. 25 Finally, Cohea was not in imminent danger at the time he filed this lawsuit. The 26 events described in the Complaint occurred at Corcoran State Prison. At the time of 27 filing, Plaintiff had been transferred to, and still remains at, Pelican Bay State Prison. 28 The danger described at Corcoran is not present at Pelican Bay. 2 1 Having carefully reviewed the entire file, the Court finds that the F&R is supported 2 by the record and by proper analysis with respect to Cohea. With respect to Glass and 3 Dupree, Rule 11(a) requires every pleading to be signed either by an attorney or “by a 4 party personally if the party is unrepresented.” Rule 11 also requires the Court to “strike 5 an unsigned paper unless the omission is promptly corrected after being called to the 6 attorney’s or party’s attention.” Fed. R. Civ. P. 11(a). As stated above, Glass and 7 Dupree did not sign the Complaint. Pursuant to Rule 11(a), Glass and Dupree will be 8 required to submit a signed Complaint. If they fail to do so, they will be dismissed from 9 this case. 10 11 12 13 Accordingly, it is HEREBY ORDERED that: 1. Consistent with the above analysis, the findings and recommendations, filed on November 2, 2016 (ECF No. 11) is ADOPTED; 14 2. Plaintiff Cohea’s in forma pauperis status (ECF No. 9) is REVOKED; 15 3. Plaintiff is directed to pay the $400 filing fee within fourteen (14) days of 16 17 18 19 20 21 22 service of this Order; 4. Plaintiff’s failure to timely pay the filing fee will result in the dismissal of Plaintiff Cohea from this case without further notice; 5. Purported Plaintiffs Glass and Dupree are ordered to submitted signed Complaints within ten (10) days of service of this order; and 6. The failure to timely submit a signed Complaint will result in the dismissal of the purported Plaintiff(s) without further notice. 23 24 25 IT IS SO ORDERED. Dated: December 21, 2016 SENIOR DISTRICT JUDGE 26 27 28 3

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