Shehee v. Lefors et al

Filing 7

ORDER Directing Clerk of Court to Randomly Assign a District Judge to This Action (This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Stanley A. Boone. The new case number is 1:18-cv-00233-LJO-SAB); F INDINGS and RECOMMENDATIONS Recommending Plaintiff's Motion for In Forma Pauperis Application be Denied and Plaintiff be Directed to Pay the $400.00 Filing Fee, signed by Magistrate Judge Stanley A. Boone on 3/12/18. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY ELL SHEHEE, 12 13 14 15 Plaintiff, v. M. LEFORS, et al., Defendants. 16 17 18 19 20 21 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:18-cv-00233-SAB (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN A DISTRICT JUDGE TO THIS ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR IN FORMA PAUPERIS APPLICATION BE DENIED AND PLAINTIFF BE DIRECTED TO PAY THE $400.00 FILING FEE [ECF No. 6] Plaintiff Gregory Ell Shehee is appearing pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the instant action on February 16, 2018. Currently pending before the Court is Plaintiff’s motion to proceed in forma pauperis in this action, filed March 9, 2018. (ECF No. 6.) 22 The Prison Litigation Reform Act of 1995 (PLRA) was enacted “to curb frivolous prisoner 23 complaints and appeals.” Silva v. Di Vittorio, 658 F.3d 1090, 1099-1100 (9th Cir. 2011). Pursuant to 24 the PLRA, the in forma pauperis statue was amended to include section 1915(g), a non-merits related 25 screening device which precludes prisoners with three or more “strikes” from proceeding in forma 26 pauperis unless they are under imminent danger of serious physical injury. 28 U.S.C. § 1915(g); 27 Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). The statute provides that “[i]n no event 28 shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or more prior 1 1 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the 2 United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim 3 upon which relief may be granted, unless the prisoner is under imminent danger of serious physical 4 injury.”1 28 U.S.C. § 1915(g). The Court has reviewed Plaintiff’s complaint (which consists of several exhibits) and his 5 6 allegations do not satisfy the imminent danger exception to section 1915(g). Andrews v. Cervantes, 7 493 F.3d 1047, 1055-56 (9th Cir. 2007). Plaintiff challenges his medical treatment in 2016 while he 8 was housed at the Fresno County Jail. Plaintiff makes no allegations concerning any imminent danger 9 of serious physical injury. Therefore, Plaintiff has not satisfied the exception from the three strikes bar 10 under 28 U.S.C. § 1915(g), and must pay the $400.00 filing fee if he wishes to litigate this action. 11 Accordingly, it is HEREBY RECOMMENDED that: 12 1. Plaintiff’s motion to proceed in forma paupers be denied; 13 2. Plaintiff be required to pay the $400.00 filing fee for this action; and 14 3. The Clerk of Court is directed to randomly assign a District Judge to this action. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 25 26 27 28 1 The Court takes judicial notice of the following United States District Court cases: Shehee v. Marie, et al., 2:00-cv01311-LKK-JFM (E.D. Cal. Jan. 5, 2001) (dismissing for failure to state a claim); Shehee v. Martin, et al., 2:01-cv-00163DFL-PAN (E.D. Cal. Aug. 16, 2001) (dismissed for failure to state a claim); Shehee v. Peugh, et al., 1:14-cv-00612-LJOSKO (E.D. Cal. Dec. 17, 2014) (dismissed for failure to state a claim); Shehee v. Beuster, et al., 1:14-cv-00122-LJO-BAM (E.D. Cal. Feb. 27, 2015) (dismissed for failure to state a claim); Shehee v. Flores, et al., 1:14-cv-00589-LJO-GSA (E.D. Cal. Apr. 2, 2015) (dismissed for failure to state a claim); Shehee v. King, 1:14-cv-00590-AWI-GSA (E.D. Cal. Apr. 3, 2015) (dismissed for failure to state a claim); Shehee v. Villalobos, 1:14-cv-00622-LJO-DLB (Apr. 13, 2015) (dismissed for failure to state a claim); and Shehee v. Ahlin, et al., 1:14-cv-0005-LJO-DLB (Mar. 29, 2016) (dismissed for failure to state a claim). 2 1 These findings and recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provision of 28 U.S.C. §636 (b)(1)(B). Within fourteen (14) days 3 after being served with these Finding and Recommendations, Plaintiff may file written objections with 4 the Court. The document should be captioned “Objections to Findings and Recommendations.” 5 Plaintiff is advised that failure to file objections within the specified time may result in the waiver of 6 rights on appeal. Wilkerson v. Wheeler, 772 F.2d F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. 7 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 8 9 10 11 IT IS SO ORDERED. Dated: March 12, 2018 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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