(PC) Brown v. Brown et al, No. 2:2018cv02141 - Document 5 (E.D. Cal. 2018)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/10/18 DIRECTING the clerk to randomly assign a district judge. District Judge Kimberly J. Mueller added. It is further RECOMMENDED that 4 Motion to Proceed In Forma Pauperis be Denied and that Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any order adopting these findings and recommendations. Referred to Judge Kimberly J. Mueller. Objections due within 14 day after being served with these findings and recommendations. New Case Number: 2:18-cv-2141-KJM-EFB.(Coll, A)
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(PC) Brown v. Brown et al Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER BROWN, 12 Plaintiff, 13 14 No. 2:18-cv-2141-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS EDMUND G. BROWN, Jr., et al., 15 Defendants. 16 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 17 18 § 1983, seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons 19 stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma 20 pauperis. 21 A prisoner may not proceed in forma pauperis: 22 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. 23 24 25 26 28 U.S.C. § 1915(g). Court records show that plaintiff has been designated a three-strikes 27 ///// 28 ///// 1 Dockets.Justia.com 1 litigant for purposes of § 1915(g)1 and plaintiff’s complaint fails to allege facts that adequately 2 demonstrate he is under imminent danger of serious physical injury.2 Plaintiff’s application for 3 leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must 4 submit the appropriate filing fee in order to proceed with this action. 5 6 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. 7 8 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma pauperis, IT IS HEREBY RECOMMENDED that: 9 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 4) be denied; and 10 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 11 order adopting these findings and recommendations and be admonished that failure to do so will 12 result in the dismissal of this action. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 ///// 19 ///// 20 ///// 21 ///// 22 23 24 25 26 27 28 1 See Brown v. Sagireddy, No. 2:17-cv-2041-KJM-AC (E.D. Cal. May 2, 2018), ECF No. 14. 2 To meet his burden under § 1915(g) to adequately allege “imminent danger of serious physical injury,” plaintiff must provide “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). “Vague and utterly conclusory assertions” of harm are insufficient. White v. Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). That is, the “imminent danger” exception is available “for genuine emergencies,” where “time is pressing” and “a threat . . . is real and proximate.” Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). 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 10, 2018. 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
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