(PC) Malone v. Aboytes, No. 1:2019cv01594 - Document 8 (E.D. Cal. 2019)

Court Description: FINDINGS and RECOMMENDATIONS to Deny Plaintiff's 2 Motion to Proceed In Forma Pauperis and Dismiss Action without Prejudice; ORDER DIRECTING Clerk of Court to Assign a District Judge; referred to Judge Anthony W. Ishii, signed by Magistrate Judge Sheila K. Oberto on 11/18/2019. Objections to F&R due within Fourteen (14) Days.(Orozco, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESHAWN MALONE, 12 Plaintiff, 13 14 v. J. ABOYTES, 15 Case No. 1:19-cv-01594-SKO (PC) FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISS ACTION WITHOUT PREJUDICE (Doc. 2) Defendant. 16 14-DAY DEADLINE Clerk of Court to Assign a District Judge 17 Plaintiff Deshawn Malone seeks to proceed in forma pauperis (“IFP”) pursuant to 28 18 19 U.S.C. section 1915. (Doc. 2.) Because Plaintiff has three “strikes” under section 1915(g) and 20 fails to show that he is in imminent danger of serious physical injury, the Court recommends that 21 Plaintiff’s motion be DENIED. 22 23 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 28 U.S.C. section 1915 governs proceedings in forma pauperis. The statute provides that 24 “[i]n no event shall a prisoner bring a civil action … under this section if the prisoner has, on 3 or 25 more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in 26 a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or 27 fails to state a claim upon which relief may be granted, unless the prisoner is under imminent 28 danger of serious physical injury.” 28 U.S.C. § 1915(g). 1 II. PLAINTIFF’S STRIKES 2 The Court takes judicial notice of four of Plaintiff’s prior lawsuits that were dismissed on 3 the grounds that they were frivolous, malicious, or failed to state a claim:1 (1) Malone v. Rangel, 4 et al., Case No. 1:09-cv-00505-SKO (E.D. Cal.) (dismissed on July 29, 2010 for failure to state a 5 claim); (2) Malone v. Jones, Case No. 1:09-cv-01397-JLT (E.D. Cal) (dismissed on October 29, 6 2010, for failure to state a claim); (3) Malone v. Gonzalez, et al., Case No. 1:11-cv-00697-DLB 7 (E.D. Cal.) (dismissed on May 1, 2012 for failure to state a claim); (4) Malone v. Gonzalez, et al., 8 Case No. 1:12-cv-01758-MJS (E.D. Cal.) (dismissed on March 29, 2013, for failure to state a 9 claim). Each of these cases was dismissed prior to Plaintiff initiating the current action on 10 November 7, 2019. Plaintiff is therefore precluded from proceeding IFP in this action unless, at 11 the time he filed his complaint, he was under imminent danger of serious physical injury. See 12 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). Plaintiff’s allegations do not meet the imminent danger exception. In his complaint, 13 14 Plaintiff states that he was involved in a physical altercation with another inmate, which resulted 15 in their being pepper sprayed. (Doc. 1 at 9-10.) Plaintiff alleges that the defendant violated his 16 Eighth Amendment rights because he “denied [Plaintiff] decontamination” after he was pepper 17 sprayed. (Id. at 4.) Such allegation of a past event does not show that Plaintiff is in imminent, 18 future danger of serious physical injury. 19 III. CONCLUSION AND RECOMMENDATIONS 20 Based on the foregoing, the Court RECOMMENDS that: 21 1. Plaintiff’s motion to proceed in forma pauperis, (Doc. 2), be DENIED; and, 22 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 23 24 filing fee. The Clerk of the Court is DIRECTED to randomly assign a United States District Judge. 25 These Findings and Recommendations will be submitted to the United States District 26 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days of 27 the date of service of these Findings and Recommendations, Plaintiff may file written objections 28 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 with the Court. The document should be captioned, “Objections to Magistrate Judge’s Findings 2 and Recommendations.” Plaintiff’s failure to file objections within the specified time may result 3 in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 4 Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 7 8 IT IS SO ORDERED. Dated: November 18, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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