Dupree v. Oberto et al

Filing 9

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD JOSE DUPREE, JR., 12 Plaintiff, 13 14 v. SHEILA K. OBERTO, et al., 15 Defendants. 16 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 17 18 ) ) ) ) ) ) ) ) ) ) action pursuant to 42 U.S.C. § 1983. 19 I. 20 INTRODUCTION On December 6, 2016, Plaintiff Richard Jose Dupree, Jr., a state prisoner proceeding pro se, 21 22 filed this civil rights action pursuant to 42 U.S.C. § 1983, along with a motion to proceed in forma 23 pauperis, 28 U.S.C. § 1915(a). (ECF Nos. 1 and 2.) However, Plaintiff is subject to section 1915(g) 24 of the statute, and he may only proceed in forma pauperis if he has met the imminent danger 25 exception. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1051-1052 (9th Cir. 2007). 26 /// 27 /// 28 /// 1 1 II. 2 LEGAL STANDARD The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 3 4 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 5 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 6 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 7 pauperis unless they are under imminent danger of serious physical injury. Andrews, 493 F.3d at 8 1050. The statute provides that “[i]n no event shall a prisoner bring a civil action … under this section 9 if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought 10 an action or appeal in a court of the United States that was dismissed on the grounds that it is 11 frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 12 under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 13 III. 14 DISCUSSION Plaintiff has suffered three or more strikes under section 1915(g). See, e.g., Dupree v. U.S. 15 16 Copyright Office, No. 2:11-cv-1700 WBS KJN (dismissed as frivolous and for failure to state claim); 17 Dupree v. United States District Court, No. 2:11-cv-0263 DAD (dismissed as frivolous); Dupree v. 18 Santiago, et al., No. 2:11-cv-0309 EFB (dismissed for failure to state a claim); see also Dupree v. 19 Denny, No. 2:16-cv-1271 JAM CKD P (finding plaintiff has suffered three strikes under section 20 1915(g), ECF No. 5.) 21 The issue now becomes whether Plaintiff has met the imminent danger exception, which 22 requires Plaintiff to show that he is under (1) imminent danger of (2) serious physical injury and which 23 turns on the conditions he faced at the time he filed suit on March 3, 2016. Andrews, 493 F.3d at 24 1053-1056. Conditions which posed imminent danger to Plaintiff at some earlier time are immaterial, 25 as are any subsequent conditions. Id. at 1053. While the injury is merely procedural rather than a 26 merits-based review of the claims, the allegations of imminent danger must still be plausible. Id. at 27 1055. 28 2 1 The Court has reviewed Plaintiff’s complaint and finds that Plaintiff does not meet the 2 imminent danger exception. Andrews, 493 F.3d at 1053. Plaintiff’s allegations stem from an alleged 3 conspiracy among government officials. There are no allegations that Plaintiff is presently in 4 imminent danger of physical harm. Accordingly, Plaintiff is ineligible to proceed in forma pauperis in 5 this action. 6 IV. 7 RECOMMENDATIONS 8 Based on the foregoing, it is HEREBY RECOMMENDED that: 9 1. Plaintiff’s application to proceed in forma pauperis be DENIED; and 10 2. 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. 11 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within twenty-one (21) 14 days after being served with these Findings and Recommendations, Plaintiff may file written 15 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendations.” 17 specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838- 18 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 19 20 IT IS SO ORDERED. 21 Dated: 22 December 23, 2016 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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