Joseph v. Franklin et al
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 6/26/2018 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED plaintiff's 7 application to proceed ifp be denied; pl aintiff's 6 request for an extension of time to file a certified trust account statement and 8 motion to amend be denied as moot; and plaintiff be ordered to pay the $400.00 fee within 14 days from any district court order adopting these findings and recommendations. Assigned and referred to Judge William B. Shubb; Objections to F&R 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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ALONZO JOSEPH,
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No. 2:17-cv-1741-EFB P
Plaintiff,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
FRANKLIN, et al.,
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Defendant.
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Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C.
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§ 1983, seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons
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explained below, the court finds that plaintiff has not demonstrated he is eligible to proceed in
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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). 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 Joseph v. Noguchi, No. 2:17-cv-1193-MCE-
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ZC (E.D. Cal. June 12, 2017) (identifying plaintiff as a three-strikes litigant and denying
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plaintiff’s application for leave to proceed in forma pauperis).
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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). In this case, plaintiff
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alleges that a correctional officer threatened to assault him in January of 2017 and then placed
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him in administrative segregation when he did not consent to a cell move. See ECF No. 1. These
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allegations fail to demonstrate that plaintiff was under an imminent danger of serious physical
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injury when he filed this action in August of 2017. See id. Plaintiff’s application for leave to
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proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must submit
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the appropriate filing fee in order to proceed with this action.
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Plaintiff has also requested an extension of time to file a certified trust account statement
and a motion to amend the complaint. Both of those requests should be denied as moot.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly
assign a United States District Judge to this action.
Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma
pauperis, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s application to proceed in forma pauperis (ECF No. 7) be denied;
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2. Plaintiff’s request for an extension of time to file a certified trust account statement
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(ECF No. 6) and motion to amend (ECF No. 8) be denied as moot; and
3. Plaintiff be ordered to pay the $400 filing fee within fourteen days from any district
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court order adopting these findings and recommendations. Failure to so comply will result in the
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dismissal of this action.
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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: June 26, 2018.
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