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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 Case No. 1:17-cv-00756-SKO (PC) BRANDON ALEXANDER FAVOR, Plaintiff, 11 12 v. 13 MONAE, et al., (Doc. 2) Defendants. 14 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 15 16 I. 17 18 19 20 21 22 23 24 25 26 27 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. II. 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 28 1 1 2 injury.” 28 U.S.C. § 1915(g). III. 3 4 5 6 7 8 9 10 11 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. 12 The Court has reviewed Plaintiff's Complaint and finds that he does not meet the 13 imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 14 Plaintiff’s allegations are largely incoherent -- it appears that he is simply reciting various events 15 of his upbringing and activities which resulted in his incarceration. (Doc. 1.) None of Plaintiff’s 16 allegations show that he was under an imminent danger at the time he filed this action. Based on 17 the foregoing, the Court finds that Plaintiff fails to allege an imminent danger of serious physical 18 injury necessary to bypass the restriction of § 1915(g) on filing suit without prepayment of the 19 filing fee since he has three strikes. Plaintiff may not proceed in forma pauperis and must submit 20 the appropriate filing fee in order to proceed with this action. 21 IV. 22 CONCLUSION and RECOMMENDATION Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to 23 proceed in forma pauperis, filed June 2, 2017 (Doc. 2), be denied and that Plaintiff be ordered to 24 pay the filing fee in full. The Clerk’s Office is directed to assign a district judge to this action. 25 26 27 28 1 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.” 2 1 2 3 4 5 6 7 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)). 8 9 10 11 IT IS SO ORDERED. Dated: June 9, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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