Robinson v. Davey et al

Filing 6

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY L. ROBINSON, 12 Plaintiff, 13 14 vs. DAVE DAVEY, et al., 15 Defendants. 16 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 17 18 19 20 21 22 23 24 I. BACKGROUND 25 Anthony L. Robinson (“Plaintiff”) is a state prisoner proceeding pro se with this civil 26 rights action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this 27 action on November 15, 2017, together with an application to proceed in forma pauperis. (ECF 28 Nos. 1, 2.) Plaintiff’s application to proceed in forma pauperis is now before the court. 1 1 II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 2 28 U.S.C. § 1915 governs proceedings in forma pauperis. Section 1915(g) provides 3 that “[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, 4 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action 5 or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 6 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is 7 under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). 8 Discussion 9 A review of the actions filed by Plaintiff reveals that Plaintiff is subject to 28 U.S.C. ' 10 1915(g) and is precluded from proceeding in forma pauperis unless Plaintiff was, at the time 11 the Complaint was filed, under imminent danger of serious physical injury.1 12 The Court has reviewed Plaintiff’s Complaint and finds that Plaintiff does not meet the 13 imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). 14 Plaintiff’s Complaint arises from events beginning on June 13, 2013, in which Plaintiff alleges 15 that he refused to relinquish his waist chain mechanical restraints, insisting that he should be 16 allowed to talk to the Sergeant about his grievances, was pepper-sprayed, denied medical 17 treatment, not allowed to decontaminate himself, and found guilty of false allegations. Plaintiff 18 fails to allege facts in the Complaint indicating he was under imminent danger at the time he 19 filed the Complaint. Based on the foregoing, the court finds that Plaintiff fails to allege the 20 imminent danger of serious physical injury necessary to bypass ' 1915(g)’s restriction on his 21 filing suit without prepayment of the filing fee. 22 Accordingly, Plaintiff may not proceed in forma pauperis in this action, and must 23 submit the appropriate filing fee in order to proceed with this action. Plaintiff’s application to 24 /// 25 26 27 28 1 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). 2 1 proceed in forma pauperis should be denied, and Plaintiff should be required to pay the 2 $400.00 filing fee in full within thirty days. 3 III. CONCLUSION AND RECOMMENDATIONS 4 Based on the foregoing, it is HEREBY RECOMMENDED that: 5 1. 6 7 pauperis, filed on November 15, 2017, be DENIED; and 2. 8 9 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 10 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 11 fourteen (14) days from the date of service of these findings and recommendations, Plaintiff 12 may file written objections with the court. Such a document should be captioned “Objections 13 to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 14 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 15 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 16 (9th Cir. 1991). Within 17 18 19 20 IT IS SO ORDERED. Dated: November 27, 2017 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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