Fourstar v. Kane et al

Filing 8

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; denying 1 Motion for Leave to Proceed in forma pauperis. Signed by Judge Brian Morris on 6/6/2016. (SLL, ) Modified on 6/6/2016: mailed to Fourstar (TAG, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

CV 16-00019-GF-BMM

VICTOR CHARLES FOURSTAR, JR.
Plaintiff,
vs.

ORDER ADOPTING MAGISTRATE
JUDGE’S FINDINGS AND
RECOMMENDATIONS

RICHARD KANE, et al.
Defendants.

Plaintiff Victor Fourstar, Jr. filed a Motion to Proceed in Forma Pauperis
(Doc. 1), a proposed Complaint (Doc. 2), and several other motions including a
motion for recusal of judges (Doc. 5). Fourstar is a federal inmate housed in the
United States Penitentiary in Marianna, Florida. United States Magistrate Judge
John Johnston entered Findings and Recommendations in this matter on May 17,
2016. (Doc. 6 at 5.) Judge Johnston has recommended that the Court deny
Fourstar’s Motion to Proceed in Forma Pauperis. Id. Judge Johnston reserved

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ruling on Fourstar’s “Motion for Recusal of Judges” as it did not pertain to Judge
Johnston. (Doc. 6 at 1.)
Fourstar filed no objections to Judge Johnston’s Findings and
Recommendations. When a party makes no objections, the Court need not review
de novo the proposed Findings and Recommendations. Thomas v. Arn, 474 U.S.
140, 149-52 (1986). This Court will review Judge Johnston’s Findings and
Recommendations, however, for clear error. McDonnell Douglas Corp. v.
Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981).
The Court possesses discretion to grant a defendant permission to proceed in
forma pauperis. See 28. U.S.C. §1915(a). A prisoner who “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”
may not bring a civil action or appeal a judgment in a civil action, “unless the
prisoner is under imminent danger of serious or physical injury.”
Fourstar has exceeded the three “strikes” allowed by the Prison Litigation
Reform Act. He has filed at least three civil actions that have been dismissed as
frivolous or for failure to state a claim. Fourstar has not satisfied the imminent
danger exception to section 1915(a). Andrews v. Cervantes, 493. F.3d 1047, 1055-

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56 (9th Cir. 2007). The Court finds no error in Judge Johnston’s Findings and
Recommendations, and adopts them in full.
Accordingly, IT IS ORDERED that Fourstar’s request to proceed in forma
pauperis (Doc. 1) under 28 U.S.C. § 1915(a) is DENIED.
DATED this 6th day of June, 2016.

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