(PC) Brown v. Brown et al, No. 2:2018cv02141 - Document 10 (E.D. Cal. 2019)
Court Description: ORDER signed by District Judge Kimberly J. Mueller on 3/11/19 ADOPTING in full 5 FINDINGS AND RECOMMENDATIONS. Plaintiff's 4 application to proceed in forma pauperis is DENIED. Plaintiff is ORDERED to pay the $400 filing fee within 14 days from the date of this order and is admonished that failure to do so will result in the dismissal of this action. (Kastilahn, A)
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(PC) Brown v. Brown et al Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER BROWN, 12 13 14 15 No. 2:18-cv-2141-KJM-EFB P Plaintiff, v. ORDER EDMUND G. BROWN, Jr., et al., Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action seeking relief 18 under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate Judge as provided 19 by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On October 11, 2018, the magistrate judge filed findings and recommendations, which 21 were served on plaintiff and which contained notice to plaintiff that any objections to the findings 22 and recommendations were to be filed within fourteen days. Plaintiff has filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court finds the 26 findings and recommendations to be supported by the record and by proper analysis. 27 The magistrate judge found that plaintiff is a three-strikes litigant for purposes of 28 28 U.S.C. § 1915(g) and that his complaint fails to demonstrate he is under imminent danger of 1 Dockets.Justia.com 1 serious physical injury. Although plaintiff asserted in his complaint that he faced “[i]mminent 2 threat to life and limb due to circumstances giving rise to this complaint,” the complaint 3 concerned plaintiff’s access to mail and right to free speech. See ECF No. 1 at 2–3. The 4 complaint also alleged that plaintiff had “suffered repeated acts of attempted murder,” but did not 5 include any specific allegations that plaintiff was in any imminent danger of serious physical 6 injury at the time he filed the complaint. Id. at 19. Compare Brown v. United States, No. 2:18- 7 cv-1719-MCE-CKD (E.D. Cal. Jul. 31, 2018), with ECF Nos. 1 & 5 (finding plaintiff’s similarly 8 vague allegations of “attempted murder” insufficient to demonstrate imminent danger of serious 9 physical injury). 10 Plaintiff’s most concrete allegations of imminent harm were presented by way of an 11 attachment to his complaint. See ECF No. 1 at 18–19 (“statement of why in forma pauperis status 12 should be granted,” previously filed in Brown v. California, Case No. 17-175727 (9th Cir. May 3, 13 2018), ECF No. 10). There, plaintiff alleged that as recently as April 2018, he had been the 14 victim of “attempted murder” because he was being “deliberately poisoned,” putting him at risk 15 of a “heart attack and/or death” caused by “potassium toxicity.” ECF No. 1 at 19; see also id. 16 (alleging medical records would reflect he had “suffered many such poisonings in recent 17 months”). The Ninth Circuit Court of Appeals previously has found, however, these 18 allegations—which plaintiff has a lengthy history of making1—were not sufficient to show 19 imminent danger of serious physical injury. See Brown v. California, Case No. 17-175727 (9th 20 Cir. Jul. 19, 2018), ECF No. 13 (denying plaintiff’s motion for leave to proceed in forma pauperis 21 on appeal). Plaintiff’s ongoing similar complaints, as presented in the objections and amended 22 complaints filed in this action (see ECF Nos. 6, 7, 8), do not warrant a different outcome. 23 ///// 24 1 25 26 27 28 Court records reflect that plaintiff has been alleging that prison officials have been attempting to kill him since as early as 2011. See Brown v. Brown, No. 2:11-cv-3053-KJM-KJN (E.D. Cal.), ECF No. 1 (Nov. 17, 2011 complaint). Courts have rejected these repeated allegations from plaintiff as “frivolous,” “delusional,” “far-fetched,” and “fantastical.” See Brown v. Mueller, No. 2:12-cv-2321-KJM-DAD (E.D. Cal.), ECF Nos. 33 & 39; Brown v. Feinstein, No. 18-cv-0670TLN-CKD (E.D. Cal.), ECF No. 7 at 4. Nothing before the court now leads to a different conclusion. 2 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations filed October 11, 2018, are adopted in full; 3 2. Plaintiff’s application to proceed in forma pauperis (ECF No. 4) is denied; and 4 3. Plaintiff is ordered to pay the $400 filing fee within fourteen days from the date of this 5 order and is admonished that failure to do so will result in the dismissal of this action. 6 DATED: March 11, 2019. 7 8 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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