(PC) Wilson v. Marin et al, No. 2:2014cv01829 - Document 6 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/7/14 RECOMMENDING that this action be dismissed without prejudice to re- filing upon pre-payment of the $400 filing fee. Referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)

Download PDF

(PC) Wilson v. Marin et al Doc. 6 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 DAVID W. WILSON, 11 12 13 14 No. 2:14-cv-1829-WBS-EFB P Plaintiff, v. FINDINGS AND RECOMMENDATIONS MARIN, et al., Defendants. 15 16 17 Plaintiff David W. Wilson is a state prisoner proceeding without counsel in an action 18 brought under 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. 19 § 1915(a). For the reasons explained below, the court finds that plaintiff has not demonstrated he 20 is eligible to proceed in forma pauperis. 21 22 23 24 25 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. 26 28 U.S.C. § 1915(g). Court records reflect that on at least three prior occasions, plaintiff has 27 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 28 state a claim upon which relief may be granted. See (1) Wilson v. Schwartz, No. 2:05-cv-16491 Dockets.Justia.com 1 GEB-CMK (Oct. 31, 2006 E.D. Cal.) (order dismissing action for failure to state a claim); (2) 2 Wilson v. Dovey, No. 2:06-cv-1032-FCD-EFB (Mar. 8, 2007 E.D. Cal.) (order dismissing action 3 for failure to state a claim); and (3) Wilson v. Dovey, No. 2:06-cv-2553-JKS-EFB (Mar. 11, 2008 4 E.D. Cal.) (order dismissing action for failure to state a claim). See also Wilson v. Hubbard, No. 5 2:07-cv-1558-WBS-GGH (Oct. 16, 2009 E.D. Cal.) (order designating plaintiff a three strikes 6 litigant for purposes of section 1915(g)). 7 The section 1915(g) exception applies if the complaint makes a plausible allegation that 8 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 9 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). For the exception to 10 apply, the court must look to the conditions the “prisoner faced at the time the complaint was 11 filed, not at some earlier or later time.” Andrews, 493 F.3d at 1053, 1056 (requiring that prisoner 12 allege “an ongoing danger” to satisfy the imminency requirement). Courts need “not make an 13 overly detailed inquiry into whether the allegations qualify for the exception.” Id. at 1055. 14 In the complaint, plaintiff claims that his right to practice his religion is burdened by 15 restrictions on his access to religious oils. ECF No. 1. His allegations do not demonstrate that he 16 suffered from imminent danger of serious physical injury at the time he filed his complaint. 17 Thus, the imminent danger exception does not apply. 18 19 Because plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, this action must be dismissed. 20 21 Accordingly, it is hereby RECOMMENDED that this action be dismissed without prejudice to re-filing upon pre-payment of the $400 filing fee. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 27 ///// 28 ///// 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: October 7, 2014. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.