Robinson v. Davey et al
Filing
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FINDINGS and RECOMMENDATIONS Recommending that Plaintiff's 2 Application to Proceed In Forma Pauperis be Denied Under 28 U.S.C. 1915(g) and Plaintiff be Required to Submit the $400.00 Filing Fee in Full within Thirty Days; Objections, if any, Due within Fourteen Days signed by Magistrate Judge Gary S. Austin on 11/27/2017. Referred to Judge Dale A. Drozd. Objections to F&R due by 12/14/2017. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ANTHONY L. ROBINSON,
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Plaintiff,
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vs.
DAVE DAVEY, et al.,
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Defendants.
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1:17-cv-01524-DAD-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT PLAINTIFF’S
APPLICATION TO PROCEED IN FORMA
PAUPERIS BE DENIED UNDER 28 U.S.C.
§ 1915(g) AND PLAINTIFF BE REQUIRED
TO SUBMIT THE $400.00 FILING FEE IN
FULL WITHIN THIRTY DAYS
(ECF No. 2.)
OBJECTIONS, IF ANY, DUE WITHIN
FOURTEEN DAYS
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I.
BACKGROUND
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Anthony L. Robinson (“Plaintiff”) is a state prisoner proceeding pro se with this civil
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rights action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this
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action on November 15, 2017, together with an application to proceed in forma pauperis. (ECF
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Nos. 1, 2.) Plaintiff’s application to proceed in forma pauperis is now before the court.
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II.
THREE-STRIKES PROVISION OF 28 U.S.C. § 1915
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28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides
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that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has,
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on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was dismissed on the grounds that it is frivolous,
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malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is
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under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
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Discussion
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A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. '
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1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time
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the Complaint was filed, under imminent danger of serious physical injury.1
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The Court has reviewed Plaintiff’s Complaint and finds that Plaintiff 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 Complaint arises from events beginning on June 13, 2013, in which Plaintiff alleges
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that he refused to relinquish his waist chain mechanical restraints, insisting that he should be
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allowed to talk to the Sergeant about his grievances, was pepper-sprayed, denied medical
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treatment, not allowed to decontaminate himself, and found guilty of false allegations. Plaintiff
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fails to allege facts in the Complaint indicating he was under imminent danger at the time he
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filed the Complaint. Based on the foregoing, the court finds that Plaintiff fails to allege the
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imminent danger of serious physical injury necessary to bypass ' 1915(g)’s restriction on his
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filing suit without prepayment of the filing fee.
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Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must
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submit the appropriate filing fee in order to proceed with this action. Plaintiff’s application to
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The Court takes judicial notice of the following cases which count as strikes: 1) Robinson v. Davis, et
al., 2:03-cv-02085-FCD (E.D. Cal.) (dismissed February 22, 2008, for failure to state a claim); 2) Robinson v.
Davis, et al., 08-15632 (9th Cir. 2010) (dismissed March 9, 2010, as frivolous); (3) Robinson v. Brown, et al.,
2:12-cv-01776-MCE-DAD (E.D. Cal.) (dismissed August 15, 2014, as barred by res judicata); and (4) Robinson
v. Superior Court, et al., 2:17-cv-02779-PSG-JC (C.D. Cal.) (dismissed May 24, 2017, for failure to state a claim).
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proceed in forma pauperis should be denied, and Plaintiff should be required to pay the
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$400.00 filing fee in full within thirty days.
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III.
CONCLUSION AND RECOMMENDATIONS
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Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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pauperis, filed on November 15, 2017, be DENIED; and
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Pursuant to 28 U.S.C. ' 1915(g), Plaintiff’s application to proceed in forma
Plaintiff be required to pay the $400.00 filing fee for this action in full within
thirty days.
These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l).
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fourteen (14) days from the date of service of these findings and recommendations, Plaintiff
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may file written objections with the court. Such a document should be captioned “Objections
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to 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, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394
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(9th Cir. 1991).
Within
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IT IS SO ORDERED.
Dated:
November 27, 2017
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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