Favor VEXATIOUS LITIGANT v. Minaj et al

Filing 5

ORDER Directing Clerk's Office to Assign a District Judge; FINDINGS and RECOMMENDATIONS recommending that 2 Plaintiff's Request to Proceed In Forma Pauperis be DENIED re 1 Complaint signed by Magistrate Judge Sheila K. Oberto on 11/7 /2017. This case has been assigned to District Judge Dale A. Drozd and Magistrate Judge Sheila K. Oberto. The new case number is 1:17-cv-01429-DAD-SKO (PC). Referred to Judge Drozd. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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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-01429-SKO (PC) BRANDON ALEXANDER FAVOR, Plaintiff, 11 v. 12 13 (Doc. 2) MINAJ, et al., 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 TWENTY-ONE (21) 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. Plaintiff also filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Plaintiff’s application to proceed in forma pauperis should be DENIED since he has three strikes under § 1915 and his allegations fail to show that 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 has shown 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 Although Plaintiff’s allegations are largely incoherent, he appears to be alleging that Nicki Minaj, 15 Lil Wayne, and the record label Cash Money Record Company have harmed him -- although the 16 type of harm Plaintiff is alleging is indiscernible. (Doc. 1.) None of Plaintiff’s allegations show 17 he was under an imminent danger at the time he filed this action. Based on the foregoing, the 18 Court finds that Plaintiff fails to allege an imminent danger of serious physical injury necessary to 19 bypass § 1915(g)’s restriction on filing suit without prepayment of the filing fee since he 20 previously received three strikes. Plaintiff may not proceed in forma pauperis and must submit 21 the appropriate filing fee to proceed with this action. 22 IV. CONCLUSION and RECOMMENDATION 23 Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff’s motion to 24 proceed in forma pauperis, filed October 24, 2017, (Doc. 2), be denied and that Plaintiff be 25 ordered to pay the filing fee in full. 26 27 28 1 Plaintiff has filed roughly 40 actions under § 1983 in this district alone, and has filed numerous other actions in other district courts in this state. Plaintiff also files actions under the surnames “Favor” and “Favor-El.” 2 1 The Clerk’s Office is directed to assign a district judge to this action. 2 3 4 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 twenty-one (21) days of the date of service of these Findings and Recommendations, Plaintiff 5 may file written objections with the Court. The document should be captioned “Objections to 6 Magistrate Judge’s Findings and Recommendations.” Plaintiff’s failure to file objections within 7 8 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)). 9 10 11 12 IT IS SO ORDERED. Dated: November 7, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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