(PC) Greene v. California Department of Corrections, No. 2:2011cv02237 - Document 10 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/18/12 recommending that plaintiff's applications to proceed in forma pauperis 7 , 9 be denied, that plaintiff be directed to pay the $350.00 filing fee within 30 days, and that plaintiff be warned that his failure to do so will result in dismissal of this action. MOTIONS to PROCEED IN FORMA PAUPERIS 7 , 9 referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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(PC) Greene v. California Department of Corrections Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MARCELLUS ALEXANDER GREENE, Plaintiff, 11 vs. 12 13 No. CIV S-11-2237 JAM EFB P CALIFORNIA DEPARTMENT OF CORRECTIONS, 14 Defendant. FINDINGS AND RECOMMENDATIONS / 15 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 16 17 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This 18 proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). For the reasons explained below, the court finds that plaintiff has not demonstrated he is 19 20 eligible to proceed in forma pauperis. A prisoner may not proceed in forma pauperis, if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury. 21 22 23 24 28 U.S.C. § 1915(g). It appears that on at least three prior occasions, plaintiff brought actions 25 while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim 26 //// 1 Dockets.Justia.com 1 upon which relief may be granted.1 See Greene v. Reyes, No. 2:00-cv-0196 LKK DAD (E.D. 2 Cal. June 7, 2010) (order dismissing case for failure to state a claim); Greene v. State of 3 California, No. 2:02-cv-2398 FCD KJM (E.D. Cal. July 14, 2003) (order dismissing case as 4 frivolous); Greene v. CDCR, No. 2:04-cv2383 FCD DAD (E.D. Cal. Jan. 24, 2006) (order 5 dismissing case for failure to state a claim). 6 Further, it does not appear that plaintiff was under imminent threat of serious physical 7 injury when he filed the complaint. See 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 8 1047, 1053 (9th Cir. Cal. 2007). The complaint includes a disjointed history of plaintiff’s 9 alleged experiences at various California prisons, including a beating by a correctional officer, 10 various sexual assaults, a false accusation of attempting to escape, and having his mail 11 intercepted. He also disputes the validity of an apparent rape conviction, and seeks damages for 12 alleged harassment. See Dckt. No. 1. Plaintiff’s allegations do not demonstrate that he suffered 13 from imminent danger of serious physical injury at the time he filed his complaint. Thus, the 14 imminent danger exception does not apply. 15 Accordingly, it is hereby RECOMMENDED that plaintiff’s applications to proceed in 16 forma pauperis (Dckt. Nos. 7, 9) be denied, that plaintiff be directed to pay the $350 filing fee 17 within 30 days, and that plaintiff be warned that his failure to do so will result in dismissal of this 18 action. See 28 U.S.C. § 1914(a). 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 //// 25 1 26 A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 Dated: January 18, 2012. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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