Dupree v. Obama

Filing 5

ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/23/2015 ORDERING that this action be randomly assigned to a US District Judge; AND RECOMMENDING that plaintiff's 2 application to proceed IFP be denied; this action be dismissed without prejudice to re-filing upon pre-payment of the $400.00 fee. Assigned and referred to Judge Troy L. Nunley; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RICHARD JOSE DUPREE, Jr.,

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No. 2:14-cv-2866-EFB P

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS1

BARACK OBAMA,

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Defendant.

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Plaintiff Richard Dupree is a state prisoner proceeding without counsel in an action

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brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C.

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§ 1915(a). However, as explained below, he has not demonstrated that he is eligible to proceed in

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forma pauperis.

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A prisoner may not proceed in forma pauperis:
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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Plaintiff did not respond to the court’s order directing him to complete and return the
form indicating either his consent to jurisdiction of the magistrate judge or request for
reassignment to a district judge. Accordingly, the clerk will be directed to randomly assign this
case to a district judge.
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28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has

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brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to

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state a claim upon which relief may be granted. See (1) Dupree v. United States District Court,

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No. 2:11-cv- 0263-DAD (E.D. Cal. Mar. 24, 2011) (order dismissing action as frivolous); (2)

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Dupree v. Santiago, No. 2:11-cv-309-EFB (E.D. Cal. Feb. 22, 2011) (order dismissing action for

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failure to state a claim); (3) Dupree v. Mills, 2:11-cv-01619-JAM-DAD (E.D. Cal. Mar. 29, 2012)

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(order dismissing action for failure to state a claim); and (4) Dupree v. U.S. Copyright Office,

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2:11-cv-01700-WBS-KJN (E.D. Cal. July 28, 2011) (order dismissing action as frivolous and for

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failure to state a claim; also designating plaintiff as a three strikes litigant for purposes of §

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1915(g)).

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The section 1915(g) exception applies if the complaint makes a plausible allegation that

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the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C.

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§ 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Here, plaintiff’s

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allegations do not demonstrate that he suffered from imminent danger of serious physical injury

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at the time he filed his complaint. Thus, the imminent danger exception does not apply. Because

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plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, this action

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must be dismissed.

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Accordingly, it is hereby ORDERED that this action be randomly assigned to a United
States District Judge.

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Further, it is hereby RECOMMENDED that

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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and

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2. This action be dismissed without prejudice to re-filing upon pre-payment of the $400

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filing fee.

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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: April 23, 2015.

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