(PC) Pierce v. Fresno Federal Court, et al., No. 1:2015cv01910 - Document 12 (E.D. Cal. 2016)

Court Description: ORDER signed by District Judge Lawrence J. O'Neill on 3/3/2016 adopting 10 FINDINGS AND RECOMMENDATIONS to deny 5 Motion to Proceed IFP and requiring Plaintiff to pay $400.00 Filing Fee for this action in full. (Filing Fee Deadline: 4/6/2016). (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SEAVON PIERCE, Case No. 1:15-cv-01910-LJO-JLT (PC) 10 Plaintiff, 11 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS 12 FRESNO FEDERAL COURT, et al., (Docs. 5, 10) 13 Defendants. 14 15 Plaintiff, Seavon Pierce, is a state prisoner proceeding pro se in this civil rights action 16 17 pursuant to 42 U.S.C. ' 1983. The matter was referred to a United States Magistrate Judge 18 pursuant to 28 U.S.C. ' 636(b)(1)(B) and Local Rule 302. 19 On January 27, 2016, the Magistrate Judge issued a Finding and Recommendation ("the 20 F&R") to deny Plaintiff's motion to proceed in forma pauperis in this action, finding that he was 21 barred under 28 U.S.C. §1915(g) since Plaintiff had at least three strikes prior to the filing of this 22 action and that Plaintiff failed to show that he was in imminent danger of serious physical injury 23 at the time he filed suit. (Doc. 10.) This was served on Plaintiff and contained notice that 24 objections to the F&R were due within thirty days. (Id.) Plaintiff filed timely objections. (Doc. 25 11.) 26 As was accurately stated in the F&R, prisoners may not bring a civil action under 28 27 U.S.C. §1915(g) if they have, on three or more prior occasions, while incarcerated or detained, 28 brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a 1 1 claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 2 physical injury. Such dismissals are colloquially referred to as "strikes." As also accurately 3 noted in the F&R, Plaintiff had at least three strikes1 under section 1915(g) prior to filing this 4 action. Thus, Plaintiff may only proceed under section 1915(g) if his allegations meet the 5 imminent danger of serious physical injury exception. 6 The Ninth Circuit has stated that "requiring a prisoner to 'allege [ ] an ongoing danger' . . . 7 is the most sensible way to interpret the immanency requirement." Andrews v. Cervantes, 493 8 F.3d 1047, 1056 (9th Cir.2007), citing Ashley v. Dilworth, 147 F.3d 715, 717 (8th Cir.2003). 9 Andrews held that the imminent danger faced by the prisoner need not be limited to the time 10 frame of the filing of the complaint, but may be satisfied by alleging a danger that is ongoing. 11 See Andrews at 1053. As found in the F&R, Plaintiff's petitions do not satisfy the imminent danger exception -- 12 13 listing himself and various entities as petitioners and a number of public and private entities as 14 respondents; listing a variety of rights he feels have been infringed such as a First Amendment 15 right “to communicate” via the U.S. mail is being impaired because Plaintiff is having difficulty 16 corresponding with a variety of news and inmate entities (see Doc. 1); difficulty corresponding 17 with the entities and individuals listed as “petitioners,” as well as an inability to obtain public 18 records, and that his right to freedom of speech and expression are being impaired (see Doc. 3); 19 and that he has evidence of fraud, bribery, corruption, and concealment (see Doc. 9). In his 20 objections, Plaintiff indicates that he intended to file his Petitions in the Ninth Circuit Appellate 21 Court and that this Court has “illegally received the action here defined sent to the 9th Circuit 22 Court of Appeals.” (Doc. 11, p. 1.) However, all of Plaintiff’s initial filings (which he titled as 23 “petitions”) show that he intended to file this action in this Court as they reflect headers of 24 “Eastern District Court of California” (Doc. 1); “Eastern District Court of Fresno California” 25 26 27 28 1 See Seavon Pierce v. Fernando Gonzales, et al., 1:10-cv-00285-JLT, which the Court dismissed on December 3, 2012 for failure to state a claim; Seavon Pierce v. Lancaster State Prison, 2:13-cv-08126, which the Court dismissed on December 3, 2013 as frivolous, malicious, and for failure to state a claim; and Seavon Pierce v. Warden of Lancaster, 2:13-cv-01939-UA-CW, which the Court on March 28, 2013 as frivolous, malicious, and for failure to state a claim. 2 1 (Doc. 3); and “Eastern District Court of Fresno” (Doc. 3). Plaintiff neither argues, nor cites 2 authority to show either that any of his allegations meet the imminent danger requirement or that 3 he is entitled to be granted in forma pauperis status in this action and the Court finds none. 4 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted a 5 de novo review of this case. Having carefully reviewed the entire file, the Court finds the F&R to 6 be supported by the record and by proper analysis. Plaintiff does not satisfy the imminent danger 7 exception to section 1915(g). See Andrews, 493 F.3d at 1055-56. Therefore, Plaintiff must pay 8 the $400.00 filing fee if he wishes to litigate the claims he raises in this action. 9 10 Accordingly, IT IS HEREBY ORDERED that: 1. full; 11 12 2. Within thirty days from the date of service of this order, Plaintiff is required to pay the $400.00 filing fee for this action in full; and 13 14 the Finding and Recommendation, filed January 27, 2016 (Doc. 10), is adopted in 3. Plaintiff’s failure to comply with this order shall result in the dismissal of this action. 15 16 17 18 19 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill March 3, 2016 UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 3

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