Dupree v. Oberto et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Plaintiff's application to proceed in forma pauperis be DENIED; Plaintiff be required to pay the $400.00 Filing Fee within thirty days of service of the Court's order adopting these Findings and Recommendations re 2 MOTION to PROCEED IN FORMA PAUPERIS ;referred to Judge Drozd,signed by Magistrate Judge Stanley A. Boone on 12/23/2016. Objections to F&R due (21-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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RICHARD JOSE DUPREE, JR.,
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Plaintiff,
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v.
SHEILA K. OBERTO, et al.,
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Defendants.
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Case No.: 1:16-cv-01904-DAD-SAB (PC)
FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF’S IN FORMA
PAUPERIS APPLICATION BE DENIED
[ECF No. 2]
Plaintiff Richard Jose Dupree, Jr. is appearing pro se and in forma pauperis in this civil rights
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action pursuant to 42 U.S.C. § 1983.
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I.
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INTRODUCTION
On December 6, 2016, Plaintiff Richard Jose Dupree, Jr., a state prisoner proceeding pro se,
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filed this civil rights action pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma
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pauperis, 28 U.S.C. § 1915(a). (ECF Nos. 1 and 2.) However, Plaintiff is subject to section 1915(g)
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of the statute, and he may only proceed in forma pauperis if he has met the imminent danger
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exception. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1051-1052 (9th Cir. 2007).
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II.
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LEGAL STANDARD
The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner
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complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to
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the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related
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screening device which precludes prisoners with three or more “strikes” from proceeding in forma
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pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at
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1050. The statute provides that “[i]n no event shall a prisoner bring a civil action … under this section
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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought
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an action or appeal in a court of the United States that was dismissed on the grounds that it is
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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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III.
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DISCUSSION
Plaintiff has suffered three or more strikes under section 1915(g). See, e.g., Dupree v. U.S.
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Copyright Office, No. 2:11-cv-1700 WBS KJN (dismissed as frivolous and for failure to state claim);
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Dupree v. United States District Court, No. 2:11-cv-0263 DAD (dismissed as frivolous); Dupree v.
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Santiago, et al., No. 2:11-cv-0309 EFB (dismissed for failure to state a claim); see also Dupree v.
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Denny, No. 2:16-cv-1271 JAM CKD P (finding plaintiff has suffered three strikes under section
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1915(g), ECF No. 5.)
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The issue now becomes whether Plaintiff has met the imminent danger exception, which
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requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which
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turns on the conditions he faced at the time he filed suit on March 3, 2016. Andrews, 493 F.3d at
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1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial,
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as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a
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merits-based review of the claims, the allegations of imminent danger must still be plausible. Id. at
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1055.
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The Court has reviewed Plaintiff’s complaint and finds that Plaintiff does not meet the
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imminent danger exception. Andrews, 493 F.3d at 1053. Plaintiff’s allegations stem from an alleged
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conspiracy among government officials. There are no allegations that Plaintiff is presently in
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imminent danger of physical harm. Accordingly, Plaintiff is ineligible to proceed in forma pauperis in
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this action.
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IV.
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RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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Plaintiff’s application to proceed in forma pauperis be DENIED; and
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Plaintiff be required to pay the $400.00 filing fee within thirty days of service of the
Court’s order adopting these Findings and Recommendations.
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These Findings and Recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21)
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days after being served with these Findings and Recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.”
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specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-
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39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
Plaintiff is advised that failure to file objections within the
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IT IS SO ORDERED.
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Dated:
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December 23, 2016
UNITED STATES MAGISTRATE JUDGE
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