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)

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