(PC)Favor v. Villegas et al

Filing 7

ORDER DIRECTING Clerk of the Court to Assign District Judge; FINDINGS and RECOMMENDATIONS to Deny #2 Plaintiff's Application to Proceed In Forma Pauperis re: #1 Prisoner Civil Rights Complaint, signed by Magistrate Judge Sheila K. Oberto on 6/4/2024. Referred to Judge Thurston; Objections to F&R due within 14 days. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRANDON FAVOR,

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Plaintiff,
v.
S. VILLEGAS, et al.,

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Defendants.

Case No.: 1:24-cv-00610-SKO
FINDINGS AND RECOMMENDATIONS TO
DENY PLAINTIFF’S APPLICATION TO
PROCEED IN FORMA PAUPERIS
(Doc. 2)
14-DAY OBJECTION PERIOD
Clerk of the Court to Assign District Judge

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Plaintiff Brandon Favor is proceeding pro se in this civil rights action pursuant to 42

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U.S.C. § 1983. On May 22, 2024, Plaintiff filed an Application to Proceed In Forma Pauperis

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(“IFP”). (Doc. 2.)

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Plaintiff’s application to proceed IFP should be denied for two reasons: (1) Plaintiff sets

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forth substantial income and assets in his IFP application; and (2) he is not entitled to proceed

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without prepayment of fees because he has accrued three or more “strikes” under section 28

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U.S.C. § 1915 and does not qualify for the imminent danger exception.

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I.

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To proceed in court without prepayment of the filing fee, a plaintiff must submit an

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affidavit demonstrating that he “is unable to pay such fees or give security therefor.” 28 U.S.C. §

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1915(a)(1). The right to proceed without prepayment of fees in a civil case is a privilege and not a

PLAINTIFF’S INCOME AND ASSETS ARE SIGNIFICANT

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right. Rowland v. California Men’s Colony, Unit II Men’s Advisory Council, 506 U.S. 194, 198

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n.2 (1993); Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) (“permission to proceed in

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forma pauperis is itself a matter of privilege and not right; denial of in forma pauperis status does

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not violate the applicant’s right to due process”). A plaintiff need not be absolutely destitute to

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proceed IFP and the application is sufficient if it states that due to his poverty he is unable to pay

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the costs and still be able to provide himself and his dependents with the necessities of life.

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Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Whether to grant or deny an

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application to proceed without prepayment of fees is an exercise of the district court’s discretion.

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Escobedo v. Applebees, 787 F.3d 1226, 1236 (9th Cir. 2015).

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In his IFP application, Plaintiff states he has received money from the following sources

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within the last 12 months: business, profession, or other self-employment; rent payments, interest,

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or dividends; pensions, annuities, or life insurance payments; disability or workers compensation

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payments, gifts or inheritances; and other sources. (See Doc. 2 at 1 [Question 3].) Asked to

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describe “each source of money” and to “state the amount received,” Plaintiff sets forth various

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sums totaling more than $5,000,000. (Id.) Plaintiff also states he has “$500,000” in cash. (Id. at 3

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[Question 4].) Plaintiff also claims he owns property valued between “$500,000 and $1,000,000”

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and has assets valued at “$200,000,000.” (Id. [Questions 5 & 6].)
In sum, Plaintiff’s IFP application should be denied based on the substantial amount of

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income and assets set forth in his application. See 28 U.S.C. § 1915(a)(1); Escobedo, 787 F.3d at

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1236.

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II.

THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

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Title 28 of the United States Code section 1915 governs IFP proceedings. The statute

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provides that “[i]n no event shall a prisoner bring a civil action . . . under this section if the

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prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought

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an action or appeal in a court of the United States that was dismissed on the grounds that it is

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frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner

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is under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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In determining whether a case counts as a “strike,” “the reviewing court looks to the

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dismissing court’s action and the reasons underlying it…. This means that the procedural

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mechanism or Rule by which the dismissal is accomplished, while informative, is not

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dispositive.” Knapp v. Hogan, 738 F.3d 1106, 1109 (9th Cir. 2013) (citation omitted).

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Analysis
The Court takes judicial notice1 of several prior lawsuits filed by Plaintiff2 in this Court

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and another district court in this Circuit involving dismissals on the grounds that they are

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frivolous, malicious, or fails to state a claim upon which relief may be granted, while Plaintiff

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was incarcerated:

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(1) Favor-El v. Rome, Case No. 1:15-cv-01865-LJO-EPG (E.D. Cal.) (dismissed on

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11/22/2016 for failure to state a claim);

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(2) Favor v. State of California, Case No. 2:16-cv-02870-JGB-JEM (C.D. Cal.) (dismissed on

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5/2/2016 as frivolous, malicious, and for failure to state a claim);

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(3) Favor-El v. United States of America, Case No. 2:15-cv-01448-GEB-AC (E.D. Cal.)

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(dismissed on 10/22/2015 as frivolous); and

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(4) Favor-El v. Rihanna, Case No. 2:15-cv-09502-JGB-JEM (C.D. Cal.) (dismissed on

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12/16/2015 as frivolous, malicious, and for failure to state a claim)

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A dismissal on the grounds of frivolousness or maliciousness, or for a failure to state a claim

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upon which relief may be granted, is a strike for purposes of 28 U.S.C. § 1915(g). Moore v.

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Maricopa Cty. Sheriff’s Office, 657 F.3d 890, 893 (9th Cir. 2011).3
Because Plaintiff has incurred at least three prior “strikes” and each was dismissed prior to

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the commencement of the current action on May 22, 2024, Plaintiff is subject to the section

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The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir.
1980).
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Plaintiff has filed actions under the surnames “Favor” and “Favor-El.”

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The undersigned has previously found, in Favor v. Black Lives Matter, Case No. 1:20-cv-01165-DADSKO, 2020 WL 8614094, at *2, n.1 (E.D. Cal. Sept. 15, 2020) that “[i]t is also noteworthy that Plaintiff
has been deemed a vexatious litigant, has filed over fifty actions in this district alone, and has filed
numerous other actions in the other district courts in this state ….”

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1915(g) bar. He is also precluded from proceeding IFP in this action unless at the time he filed his

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complaint, he was under imminent danger of serious physical injury. See Andrews v. Cervantes,

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493 F.3d 1047, 1052-53 (9th Cir. 2007). The Court has reviewed the complaint in this action and

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finds that Plaintiff’s allegations do not meet the imminent danger exception. Although very

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difficult to read, this Court cannot discern any factual allegation asserting Plaintiff is in imminent

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danger of serious physical injury. (See Doc. 1 at 3-5.)

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In sum, Plaintiff is precluded from proceeding IFP in this action because when he filed his

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complaint, he was not under imminent danger of serious physical injury. Andrews, 493 F.3d at

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1052-53.

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III.

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For the reasons set forth above, the Court DIRECTS the Clerk of the Court to assign a

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CONCLUSION AND RECOMMENDATIONS

district judge to this action and RECOMMENDS that:

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1. Plaintiff’s application to proceed IFP (Doc. 2) be DENIED; and,

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2. Plaintiff be ordered to pay the $405.00 filing fee in full within 30 days.

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These Findings and Recommendations will be submitted to the district judge assigned to

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this case, pursuant to 28 U.S.C. § 636(b)(l). Within 14 days of the date of service of these

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Findings and Recommendations, a party may file written objections with the Court. The

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document should be captioned, “Objections to Magistrate Judge’s Findings and

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Recommendations.” Failure to file objections within the specified time may result in waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Sheila K. Oberto

June 4, 2024

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UNITED STATES MAGISTRATE JUDGE

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