Favor VEXATIOUS LITIGANT v. Minaj et al

Filing 9

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS and DENYING Plaintiff's Request to Proceed in Forma Pauperis 2 , 5 , signed by District Judge Dale A. Drozd on 1/29/2018: 21-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BRANDON ALEXANDER FAVOR,

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Plaintiff,

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No. 1:17-cv-01429-DAD-SKO (PC)

v.

ORDER ADOPTING FINDINGS AND
RECOMMENDATIONS AND DENYING
PLAINTIFF’S REQUEST TO PROCEED IN
FORMA PAUPERIS

MINAJ, et al.,

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Defendants.
(Doc. Nos. 2, 5)

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

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rights action pursuant to 42 U.S.C. ' 1983. The matter was referred to a United States Magistrate

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Judge pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302.
On November 7, 2017, the assigned magistrate judge issued findings and

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recommendations recommending that plaintiff’s motion to proceed in forma pauperis in this

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action be denied, finding that plaintiff was barred from proceedings as such under 28 U.S.C.

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§1915(g) because he had suffered at least three prior strike dismissals before the filing of this

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action and that his allegations failed to show that he was in imminent danger of serious physical

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injury at the time he filed suit. (Doc. No. 5.) The findings and recommendations were served on

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plaintiff and contained notice that any objections thereto were due within twenty-one days. (Id.)

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Plaintiff filed timely objections. (Doc. No. 8.)

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As was accurately stated in the findings and recommendations, prisoners may not bring a

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civil action under 28 U.S.C. §1915(g) if they have, on three or more prior occasions, while

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incarcerated or detained, brought an action or appeal that was dismissed as frivolous, malicious,

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or for failure to state a claim upon which relief may be granted, unless the prisoner is under

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imminent danger of serious physical injury. Such dismissals are colloquially referred to as

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“strikes.” Also accurately noted in the findings and recommendations, plaintiff had suffered at

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least three strike dismissals under section 1915(g) prior to filing this action.1 Thus, plaintiff may

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only proceed under section 1915(g) if his allegations meet the exception for imminent danger of

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serious physical injury. The Ninth Circuit has stated that “requiring a prisoner to ‘allege [ ] an

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ongoing danger’ . . . is the most sensible way to interpret the imminency requirement.” Andrews

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v. Cervantes, 493 F.3d 1047, 1056 (9th Cir. 2007) (citing Ashley v. Dilworth, 147 F.3d 715, 717

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(8th Cir. 1998)). The court in Andrews held that the imminent danger faced by the prisoner need

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not be limited to the time frame of the filing of the complaint, but may be satisfied by alleging a

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danger that is ongoing. See id. at 1053.

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Although the allegations of plaintiff’s complaint are largely difficult to decipher, he

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appears to be alleging that Nicki Minaj, Lil Wayne, and the record label Cash Money Record

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Company have harmed him. The type of harm plaintiff is alleging is indiscernible, but none of

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plaintiff’s allegations show that he was under imminent danger of a serious physical injury at the

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time he filed this action. In his objections, which like the complaint are largely unintelligible,

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plaintiff appears to contend that he filed this action to prevent illegal acts by defendant Minaj

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against Maxine Anderson. Plaintiff neither argues nor cites authority to show that any of his

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allegations meet the imminent danger requirement or that he is otherwise entitled to be granted in

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forma pauperis status in this action, and the court finds none.

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See Favor v. Rome, et al., 1:15-cv-01865-LJO-EPG (E.D. Cal.) (dismissed on November 22,
2016 for failure to state a claim); Favor-El v. United States of America, et al., 2:15-cv-01448GEB-AC (E.D. Cal.) (dismissed on October 22, 2015 as frivolous); and Favor-El v. Rihanna, et
al., 2:15-cv-09502-JGB-JEM (C.D. Cal.) (dismissed on December 16, 2015 as frivolous,
malicious, and for failure to state a claim).
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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

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de novo review of this case. Having carefully reviewed the entire file, the court finds the findings

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and recommendations to be supported by the record and by proper analysis.

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Accordingly:

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1. The findings and recommendations issued November 7, 2017 (Doc. 5) are adopted

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in full;

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2. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is denied;

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3. Within twenty-one days from the date of service of this order, plaintiff shall pay in

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full the required $400.00 filing fee for this action; and
4. Plaintiff’s failure to comply with this order shall result in the dismissal of this

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action.

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IT IS SO ORDERED.

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Dated:

January 29, 2018
UNITED STATES DISTRICT JUDGE

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