Patterson v. Beard et al

Filing 8

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/23/15 recommending that plaintiff's application to proceed in forma pauperis 2 be denied; and this action be dismissed without prejudce to re-filing upon pre-payment of the $400.00 filing fee. MOTION to PROCEED IN FORMA PAUPERIS 2 referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VESTER L. PATTERSON,

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Plaintiff,

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v.

No. 2:15-cv-0290-MCE-EFB P

FINDINGS AND RECOMMENDATIONS

JEFFREY BEARD, et al.,

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Defendants.

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Plaintiff Vester Patterson 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). For the reasons explained below, he has not demonstrated that he is eligible to proceed

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in 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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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) Patterson v. Gravlin, No. 2:98-cv-15901

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AAH-RC (C.D. Cal. Apr. 27, 1998) (order dismissing action for failure to state a claim and as

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frivolous); (2) Patterson v. Lombatoz, No. 3:98-cv-1759-AJB (S.D. Cal. Nov. 3, 1998) (order

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dismissing action for failure to state a claim); (3) Patterson v. Morris, No. 2:98-cv-5252-AAH-

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RC (C.D. Cal. Nov. 9, 1998) (order dismissing action for failure to state a claim); (4) Patterson v.

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Zuniga, No. 2:11-cv-9713 (C.D. Cal.) (December 22, 2011 order denying application for leave to

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proceed in forma pauperis on grounds that complaint fails to state a claim and seeks monetary

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relief from an immune defendant, and February 22, 2012 order certifying that plaintiff’s appeal

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therefrom is frivolous); and (5) Patterson v. Leslie, No. 2:12-cv-6088-UA-SS (C.D. Cal. Aug. 9,

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2012) (order dismissing action for failure to state a claim). See also Patterson v. Lombatoz, No.

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3:00-cv-83-W-NLS (S.D. Cal. Feb. 25, 2000) (order designating plaintiff a three strikes litigant

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for purposes of §1915(g)); Patterson v. Ratelle, No. 2:99-cv-369-CM-RC (C.D. Cal. Dec. 26,

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2003) (order identifying plaintiff as a vexatious litigant).

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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). For the exception to

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apply, the court must look to the conditions the “prisoner faced at the time the complaint was

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filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner

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allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an

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overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055.

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In the complaint (ECF No. 1), plaintiff claims that his sentence has been incorrectly

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calculated and that his related administrative appeals have been denied. He alleges that he should

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no longer be incarcerated and that because of the miscalculation, he faces the ongoing and

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imminent danger “that surrounds prison living each day,” including the possibility of being

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assaulted. ECF No. 1 at 4. Plaintiff’s allegations do not demonstrate that he suffered from an

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ongoing or imminent danger of serious physical injury at the time he filed his complaint. Thus,

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the imminent danger exception does not apply. Plaintiff’s application for leave to proceed in

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forma pauperis must therefore be denied pursuant to § 1915(g).

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Accordingly, 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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