(PC) Padilla v. Davis et al, No. 1:2018cv01427 - Document 5 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Denying Motion to Proceed in Forma Pauperis and Requiring Payment of Filing Fee in Full Within Twenty-One Days 4 ; ORDER to Assign Case to District Judge - CASE ASSIGNED to District Judge Anthony W. Ishii and Magistrate Judge Jeremy D. Peterson. New Case No. 1:18-cv-01427 AWI JDP (PC), signed by Magistrate Judge Jeremy D. Peterson on 10/24/2018: Objections Due Within 14 Days. (Hellings, J)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ISMAEL L. PADILLA, 11 12 13 14 Case No. 1:18-cv-01427-JDP Plaintiff, FINDINGS AND RECOMMENDATIONS DENYING MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE DAYS Defendant. ECF No. 4 v. DAVIS, et al., 15 OBJECTIONS DUE WITHIN 14 DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 17 18 19 Plaintiff Ismael L. Padilla is a state prisoner proceeding without counsel in this civil rights 20 action brought under 42 U.S.C. § 1983. On October 15, 2018, plaintiff filed an application to 21 proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 4. 22 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 23 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 24 detained in any facility, brought an action or appeal in a court of the United States that was 25 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 27 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 28 1 1 for failing to state a claim upon which relief maybe granted.1 Plaintiff has been informed in prior 2 cases that he is subject to § 1915(g).2 3 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 4 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Though plaintiff’s complaint is difficult to 5 decipher, it states that the “mailroom supervisor, name unknown, . . . assaulted and attempted to 6 murder” plaintiff. ECF No. 1, at 2. Plaintiff does not elaborate on these allegations, failing to 7 provide any context or factual support that would make them credible. But even if an assault or 8 murder attempt occurred, plaintiff’s allegation is only about the past; he does not allege that he is 9 currently at risk. 10 Accordingly, plaintiff’s in forma pauperis application should be denied, and he should 11 pay the filing fee in full, since he has accrued three or more strikes and was not under imminent 12 danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). 13 Order 14 The clerk of court is directed to assign this case to a district judge who will review the 15 findings and recommendations. 16 Findings and Recommendation 17 Based on the foregoing, it is HEREBY RECOMMENDED that: 18 1. plaintiff’s in forma pauperis application, ECF No. 4, be DENIED; 19 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 20 of these findings and recommendations; and 21 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 22 these findings and recommendations, all pending motions be terminated and this action 23 be dismissed without prejudice. 24 The undersigned submits the findings and recommendations to a district judge under 28 25 26 27 28 1 The cases include Padilla v. Pride-Richardson, 533 F. App’x 442 (5th Cir. 2013); Padilla v. Watkins, 491 F. App’x 484 (5th Cir. 2012); Padilla v. Jenkins, No. 3:11-cv-3509-M-BH, 2012 WL 1161643 (N.D. Tex. Mar. 7, 2012), findings and recommendations adopted, 2012 WL 1174835 (N.D. Tex. Apr. 9, 2012). 2 See Padilla v. Pride-Richardson, 533 F. App’x 442 (5th Cir. 2013). 2 1 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 2 Court, Eastern District of California. Within fourteen days of the service of the findings and 3 recommendations, plaintiff may file written objections to the findings and recommendations with 4 the court and serve a copy on all parties. That document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 6 and recommendations under 28 U.S.C. § 636(b)(1)(C). Plaintiff’s failure to file objections within 7 the specified time may result in the waiver of rights on appeal. See Wilkerson v. Wheeler, 772 8 F.3d 834, 839 (9th Cir. 2014). 9 10 IT IS SO ORDERED. 11 Dated: 12 October 24, 2018 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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