Quiroga v. Youngblood et al

Filing 22

FINDINGS and RECOMMENDATIONS to Dismiss as Frivolous and for Failure to Obey a Court Order; Twenty-One (21) Day Deadline signed by Magistrate Judge Sheila K. Oberto on 12/6/2018. Referred to Judge Dale A. Drozd. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MONICO J. QUIROGA, III,

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Plaintiff,
v.
DONNY YOUNGBLOOD, et al.,
Defendants.

Case No. 1:17-cv-00859-DAD-SKO (PC)
FINDINGS AND RECOMMENDATIONS
TO DISMISS AS FRIVOLOUS AND FOR
FAILURE TO OBEY A COURT ORDER
(Docs. 14, 21)
TWENTY-ONE (21) DAY DEADLINE

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Plaintiff, Monico J. Quiroga, III, is a state prisoner proceeding pro se in this civil action
which he filed on June 28, 2017. That same day, Plaintiff filed an application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. (Doc. 2.) On September 29, 2017, Plaintiff’s application
to proceed in forma pauperis was denied and he was ordered to pay the $400 filing fee in full
within twenty-one days. (Doc. 14.) More than the time allowed has passed without Plaintiff
having paid the filing fee. Instead, Plaintiff appealed the order denying his in forma pauperis
application. (Doc. 15.)
On December 3, 2018, the Ninth Circuit affirmed this Court’s decision, finding the denial

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of in forma pauperis status proper because Plaintiff’s Complaint in this action “is obviously

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frivolous.” (Doc. 21.) As noted by the Ninth Circuit, a complaint “that is obviously frivolous

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does not confer federal subject matter jurisdiction, and may be dismissed sua sponte before
service of process.” Franklin v. Murphy, 745 F.2d 1221, 1227 n.6 (9th Cir. 1984) (citation and
internal quotation marks omitted).

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A civil action may not proceed absent the submission of either the filing fee or an
approved application to proceed in forma pauperis. 28 U.S.C. §§ 1914, 1915. Plaintiff’s
application to proceed in forma pauperis was denied since he had more than three strikes against
him and he did not meet the imminent danger of serious physical exception under 28 U.S.C. §
1915(g) at the time this action was filed. (Docs. 12, 14.) Here, despite having been given time to
pay the filing fee, Plaintiff has failed to do so.

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Based on Plaintiff’s ineligibility to proceed in forma pauperis, his failure to comply with

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the Court’s order to pay the filing fee in full, and the finding by the Ninth Circuit that this action

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is “obviously frivolous,” dismissal of this action is appropriate. In re Phenylpropanolamine

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(PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006); Local Rule 110.

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Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED
because it is frivolous and Plaintiff has failed to pay a filing fee.

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These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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twenty-one (21) days after being served with these Findings and Recommendations, Plaintiff

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may file written objections with the Court. The document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th

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Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

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December 6, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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