(PC) Whitfield v. County of Fresno et al, No. 1:2017cv01155 - Document 4 (E.D. Cal. 2017)

Court Description: ORDER Directing Clerk of Court to Randomly Assign District Judge to Action; FINDINGS and RECOMMENDATIONS Recommending Plaintiff's 2 Motion for Leave to Proceed In Forma Pauperis be Denied, signed by Magistrate Judge Barbara A. McAuliffe on 8/31/17. Objections to F&R Due Within Fourteen Days. (Marrujo, C)
Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL WHITFIELD, 12 13 Plaintiff, v. 14 COUNTY OF FRESNO, et al., 15 Defendants. 16 Case No. 1:17-cv-01155-BAM (PC) ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF No. 2) 17 FOURTEEN (14) DAY DEADLINE 18 19 20 Plaintiff Michael Whitfield (“Plaintiff”) is a pretrial detainee proceeding pro se in this 21 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on August 28, 2017. 22 (ECF No. 1.) Currently before the Court is Plaintiff’s motion for leave to proceed in forma 23 pauperis. (ECF No. 2.) 24 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 25 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 26 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 27 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 28 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 1 1 physical injury.”1 Plaintiff has been informed in a prior case that he is subject to § 1915(g).2 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 2 3 the imminent danger exception to section 1915(g).3 Andrews v. Cervantes, 493 F.3d 1047, 4 1053−55 (9th Cir. 2007). Plaintiff alleges that from April 20, 2017, through May 23, 2017, while 5 detained at the Fresno County Jail, he was deprived of prescription medication to treat his high 6 blood pressure. (ECF No. 1.) Thus, Plaintiff has not alleged any imminent danger of serious 7 physical injury at the time of filing and has not satisfied the exception from the three strikes bar 8 under 28 U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this 9 action. 10 11 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action. 12 Further, it is HEREBY RECOMMENDED that: 13 1. The motion to proceed in forma pauperis (ECF No. 2) be DENIED, pursuant to 28 14 U.S.C. § 1915(g); and 15 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 16 action. 17 These Findings and Recommendations will be submitted to the United States District 18 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 19 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 20 file written objections with the court. The document should be captioned “Objections to 21 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 22 objections within the specified time may result in the waiver of the “right to challenge the 23 1 24 25 26 The Court takes judicial notice of the following United States District Court Cases: (1) Whitfield v. Armendez, Case No. 1:02-cv-05613-OWW-SMS (E.D. Cal.) (dismissed on December 10, 2002, for failure to state a claim); (2) Whitfield v. Greenman, Case No. 1:11-cv-01130-SKO (E.D. Cal.) (dismissed on August 13, 2012, for failure to state a claim); (3) Whitfield v. Tulp, Case No. 1:11-cv-01375-SKO (E.D. Cal.) (dismissed on August 4, 2012, for failure to state a claim); and (4) Whitfield v. Downs, 1:11-cv-01243-DLB (E.D. Cal.) (dismissed on December 13, 2012, for failure to state a claim). 2 27 The Court takes judicial notice of Document 4 in Whitfield v. Spain, Case No. 1:13-cv-01753-LJO-GSA (E.D. Cal.). 28 3 The Court expresses no opinion on the merits of Plaintiff’s claims. 2 1 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 5 IT IS SO ORDERED. Dated: /s/ Barbara August 31, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3