Pierce v. McDermott et al
Filing
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ORDER ADOPTING 4 FINDINGS AND RECOMMENDATIONS IN FULL and ORDER DENYING 2 Plaintiff's Motion to Proceed IFP signed by District Judge Dale A. Drozd on 11/23/2016. Plaintiff shall pay the $400.00 filing fee within thirty (30) days. (Jessen, A)
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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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No. 1:16-cv-01281-DAD-JLT
Plaintiff,
v.
JOHN E. MCDERMOTT and KAMALA
D. HARRIS,
Defendants.
ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S REQUEST TO PROCEED IN
FORMA PAUPERIS
(Doc. No. 4)
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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. The matter was referred to a United States Magistrate Judge
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pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.
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On September 22, 2016, the assigned magistrate judge issued findings and
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recommendations, recommending that this court deny plaintiff’s motion to proceed in forma
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pauperis in this action. (Doc. No. 4.) The findings and recommendations were served on
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plaintiff and contained notice that objections thereto were due within thirty days. (Id.) On
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October 17, 2016, plaintiff filed timely objections. (Doc. No. 5.)
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As was accurately stated in the findings and recommendations, prisoners are barred by
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from bringing civil actions under 28 U.S.C. § 1915(g) if they have, on at least three prior
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occasions, while incarcerated or detained, brought an action or appeal that was dismissed as
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frivolous, malicious, or for failure to state a claim upon which relief may be granted, unless the
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prisoner is under imminent danger of serious physical injury. Such dismissals are colloquially
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referred to as “strikes.” As the assigned magistrate judge found, plaintiff has at least three
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strikes1 pursuant to § 1915(g) prior to filing this action. Thus, plaintiff may only proceed under
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§ 1915(g) if his allegations meet the imminent danger of serious physical injury exception. The
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Ninth Circuit has stated that “requiring a prisoner to ‘allege[] an ongoing danger’ . . . is the most
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sensible way to interpret the immanency requirement.” Andrews v. Cervantes, 493 F.3d 1047,
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1056 (9th Cir. 2007) (citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir. 2003)). The Ninth
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Circuit further held that the imminent danger faced by the prisoner need not be limited to the time
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frame of the filing of the complaint, but may be satisfied by alleging a danger that is ongoing.
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See id. at 1053.
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As the assigned magistrate judge concluded, the allegations in plaintiff’s complaint—that
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he has been prevented from obtaining counsel and prevented from reporting facts to the
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“appropriate authorities;” that his mail has been confiscated; that there has been a “misuse of
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public office;” that illegal and criminal acts are being concealed; that illegal contact is being made
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to inmates’ family members; that public records are being falsified; intentional acts of fraud; and
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that various of the individuals named as defendants have not been properly performing the duties
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of their positions—do not satisfy the imminent danger exception. Id. at 1053. Plaintiff fails to
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link any of allegedly infringing action to any of the named defendants, and his allegations are
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largely nonsensical.
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In his objections to the pending findings and recommendations, plaintiff asserts that the
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assigned magistrate judge improperly exercised jurisdiction over this action and that the
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provisions of the Prison Litigation Reform Act do not apply to his complaint. However, 28
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U.S.C. § 1915 is the statute under which a litigant may apply for in forma pauperis status to be
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See Seavon Pierce v. Fernando Gonzales, et al., No. 1:10-cv-00285-JLT (E.D. Cal. Dec. 3,
2012) (dismissing for failure to state a claim); Seavon Pierce v. Lancaster State Prison, No. 2:13cv-08126 (Dec. 3, 2013) (dismissing as frivolous, malicious, and for failure to state a claim); and
Seavon Pierce v. Warden of Lancaster, No. 2:13-cv-01939-UA-CW (Mar. 28, 2013) (dismissing
as frivolous, malicious, and for failure to state a claim).
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relieved of prepayment of the full filing fee. This is the statute under which plaintiff’s application
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to proceed in forma pauperis must be considered. Plaintiff has failed to show, and this court
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cannot find, that any of his allegations meet the imminent danger requirement, or that he is
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otherwise entitled to be granted in forma pauperis status with respect to this action.
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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, including plaintiff’s
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objections, the court finds the findings and recommendations to be supported by the record and
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by proper analysis.
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Accordingly:
1. The September 22, 2016 finding and recommendations (Doc. No. 4) are adopted in
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full;
2. Within thirty days from the date of service of this order, plaintiff is required to pay in
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full the $400.00 filing fee for this action; and
3. Plaintiff’s failure to pay the required filing fee as ordered will result in the dismissal of
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this action.
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IT IS SO ORDERED.
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Dated:
November 23, 2016
UNITED STATES DISTRICT JUDGE
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