Baker v. Marsh, et al

Filing 4

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/5/13 ORDERING that the Clerk of the Court shall randomly assign a United States District Judge to this action. It is RECOMMENDED that this action be dismissed without prejudice to re-filing upon pre-payment of the $350 filing fee. Referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JERRY BAKER,
Plaintiff,

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vs.
MARSH, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.
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No. 2:13-cv-0171 EFB P

Plaintiff is a county inmate proceeding without counsel in an action brought under 42

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U.S.C. § 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28

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U.S.C. § 636(b)(1). To proceed with a civil action a plaintiff must pay the $350 filing fee

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required by 28 U.S.C. § 1914(a) or request leave to proceed in forma pauperis. This action must

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be dismissed because plaintiff has neither paid the filing fee, nor demonstrated that he is eligible

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to proceed in forma pauperis.

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A prisoner may not proceed in forma pauperis,

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if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in
any facility, brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a claim
upon which relief may be granted, unless the prisoner is under imminent danger
of serious physical injury.

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28 U.S.C. § 1915(g). On at least three prior occasions, plaintiff has brought actions while

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incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon

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which relief may be granted. See (1) Baker v. Todd, 2:10-cv-1827 MCE EFB (E.D. Cal. Mar.

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21, 2011) (order dismissing action for failure to state a claim); (2) Baker v. Jones, 2:12-cv-0404

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WBS EFB (E.D. Cal. Sept. 18, 2012) (order dismissing action for failure to prosecute and failure

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to state a claim); and (3) Baker v. Marsh, 2:12-cv-0555 GEB EFB (E.D. Cal. Oct. 24, 2012)

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(order dismissing action for failure to prosecute and failure to state a claim).

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Further, it does not appear that plaintiff was under imminent threat of serious physical

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injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d

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1047, 1055 (9th Cir. Cal. 2007) (section 1915(g) imminent danger exception applies where

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complaint makes a “plausible” allegation that prisoner faced imminent danger of serious physical

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injury at the time of filing). In the complaint, plaintiff seeks damages and injunctive relief on the

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grounds he is being denied dental floss. Dckt. No. 1. Plaintiff’s allegations do not demonstrate

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that he suffered from imminent danger of serious physical injury at the time he filed his

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complaint. Thus, the imminent danger exception does not apply.

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Because plaintiff has not paid the filing fee and is not eligible to proceed in forma
pauperis, this action must be dismissed.

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Accordingly, it is hereby ORDERED that the Clerk of the Court shall randomly assign a
United States District Judge to this action.

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Further, it is hereby RECOMMENDED that this action be dismissed without prejudice to
re-filing upon pre-payment of the $350 filing fee. See 28 U.S.C. §§ 1914(a), 1915(g).

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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 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: February 5, 2013.

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