Favor v. Monae et al

Filing 7

FINDINGS and RECOMMENDATIONS to Deny Plaintiff's Request to Proceed in Forma Pauperis 2 ; ORDER DIRECTING Clerk's Office to Assign a District Judge, signed by Magistrate Judge Sheila K. Oberto on 6/9/17: 30-Day Deadline; CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Sheila K. Oberto. New Case No. 1:17-cv-00756 LJO SKO (PC). (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:17-cv-00756-SKO (PC)
BRANDON ALEXANDER FAVOR,
Plaintiff,

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v.

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MONAE, et al.,

(Doc. 2)

Defendants.

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FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF'S REQUEST TO PROCEED
IN FORMA PAUPERIS

ORDER DIRECTING CLERK’S OFFICE TO
ASSIGN A DISTRICT JUDGE
THIRTY (30) DAY DEADLINE

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I.

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INTRODUCTION
Plaintiff, Brandon Alexander Favor, is a state prisoner proceeding pro se in this civil

action under 28 U.S.C. § 13423(a) and 42 U.S.C. § 1983, which he filed on June 2, 2017. Along
with the Complaint, Plaintiff filed an application to proceed in forma pauperis pursuant to 28
U.S.C. § 1915. This request should be DENIED since Plaintiff has three strikes under § 1915
and his allegations fail to show that he is in imminent danger of serious physical injury.
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THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
28 U.S.C. § 1915 governs proceedings in forma pauperis. “In no event shall a prisoner

bring a civil action . . . under this section if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon
which relief may be granted, unless the prisoner is under imminent danger of serious physical

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injury.” 28 U.S.C. § 1915(g).
III.

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DISCUSSION
The Court may take judicial notice of court records. United States v. Howard, 381 F.3d

873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of three of Plaintiff’s prior actions:1
Favor v. Rome, et al., 1:15-cv-01865-LJO-EPG, which was dismissed on November 22, 2016, for
failure to state a claim; Favor-El v. United States of America, et al., 2:15-cv-01448-GEB-AC,
which was dismissed on October 22, 2015, as frivolous; and Favor-El v. Rihanna, et al., 2:15-cv09502-JGB-JEM, which was dismissed on December 16, 2015, as frivolous, malicious, and for
failure to state a claim. Plaintiff is thus subject to 28 U.S.C. § 1915(g), and is precluded from
proceeding in forma pauperis in this action unless he demonstrates that at the time he filed this
action, he was under imminent danger of serious physical injury.

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The Court has reviewed Plaintiff's Complaint and finds that he does not meet the

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imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007).

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Plaintiff’s allegations are largely incoherent -- it appears that he is simply reciting various events

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of his upbringing and activities which resulted in his incarceration. (Doc. 1.) None of Plaintiff’s

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allegations show that he was under an imminent danger at the time he filed this action. Based on

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the foregoing, the Court finds that Plaintiff fails to allege an imminent danger of serious physical

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injury necessary to bypass the restriction of § 1915(g) on filing suit without prepayment of the

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filing fee since he has three strikes. Plaintiff may not proceed in forma pauperis and must submit

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the appropriate filing fee in order to proceed with this action.

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IV.

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CONCLUSION and RECOMMENDATION
Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to

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proceed in forma pauperis, filed June 2, 2017 (Doc. 2), be denied and that Plaintiff be ordered to

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pay the filing fee in full.
The Clerk’s Office is directed to assign a district judge to this action.

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It is noteworthy that Plaintiff has filed thirty-seven (37) actions in this district alone and has
filed numerous other actions in the other district courts in this state. It is also noted that Plaintiff
variously files actions under the surnames “Favor” and “Favor-El.”
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These Findings and Recommendations will be submitted to the United States District
Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within
thirty (30) days of the date of service of these Findings and Recommendations, Plaintiff may file
written objections with the Court. The document should be captioned “Objections to Magistrate
Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within the
specified time may result in the waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d
834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 9, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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