(PC) Stribling v. Machado et al, No. 1:2018cv01061 - Document 13 (E.D. Cal. 2018)
Court Description: ORDER adopting 8 FINDINGS AND RECOMMENDATIONS; denying Plaintiff's 2 Motion to Proceed In Forma Pauperis and requiring Plaintiff to pay the filing fee to proceed with this action signed by District Judge Dale A. Drozd on 10/18/2018. 21-Day Deadline. (Lundstrom, T)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AARON LAMONT STRIBLING, 12 13 14 15 No. 1:18-cv-01061-CAC-BAM (PC) Plaintiff, v. MACHADO, et al., Defendants. 16 ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF’S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION (Doc. Nos. 2, 8) 17 TWENTY-ONE (21) DAY DEADLINE 18 19 Plaintiff Aaron Lamont Stribling, a state prisoner, proceeds pro se in this civil rights 20 action filed on August 2, 2018, in the United States District Court for the Central District of 21 California. (Doc. No. 1.) The action was transferred to the Eastern District of California on 22 August 8, 2018. (Doc. No. 4.) 23 On August 10, 2018, the assigned magistrate judge issued findings and recommendations 24 recommending that plaintiff’s application to proceed in forma pauperis be denied and that 25 plaintiff be required to pay the $400.00 filing fee in full to proceed with this action. (Doc. No. 8.) 26 Those findings and recommendations were served on plaintiff and contained notice that any 27 objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.) Plaintiff 28 filed objections on August 27, 2018. (Doc. No. 10.) Together with his objections, plaintiff also 1 1 filed a motion to amend the complaint and a proposed first amended complaint. (Doc. Nos. 11, 2 12.) 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c), this court has conducted a 4 de novo review of the case, including plaintiff’s objections. Plaintiff’s primary objection to the 5 findings and recommendations is that he filed an application to proceed in forma pauperis without 6 prepayment of the filing fee showing that he has insufficient funds to pay the filing fee. (Doc No. 7 10.) 8 9 Having carefully reviewed the entire file, including the proposed first amended complaint, the court finds the findings and recommendations to be supported by the record and by proper 10 analysis. Plaintiff’s objections to the findings and recommendations fail to address the magistrate 11 judge’s finding that he is subject to the three strikes bar under 28 U.S.C. § 1915(g) since he has 12 had three prior actions filed in this district dismissed for failure to state a claim and/or as frivolous 13 or malicious as well as an appeal dismissed by the Ninth Circuit as frivolous. (Doc. No. 8 at n. 14 1.) The court finds no legal basis upon which to question the magistrate judge’s findings and 15 recommendations in that regard. Furthermore, the allegations in plaintiff’s complaint and 16 proposed first amended complaint are insufficient to trigger the “imminent danger of serious 17 physical injury” exception to the three strikes bar under § 1915(g). 18 Accordingly: 19 1. 20 The findings and recommendations (Doc. No. 8) issued on August 10, 2018, are adopted in full; 21 2. 22 In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma pauperis (Doc. No. 2) is denied; 23 3. Within twenty-one (21) days following service of this order, plaintiff shall pay the 24 required $400.00 filing fee in full to proceed with this action. If plaintiff fails to 25 pay the filing fee within the specified time, this action will be dismissed; and 26 ///// 27 ///// 28 ///// 2 1 4. 2 3 4 5 The matter is referred back to the assigned magistrate for proceedings consistent with this order. IT IS SO ORDERED. Dated: October 18, 2018 UNITED STATES DISTRICT 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
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