(PC) Joseph v. Horwitz et al, No. 2:2018cv03155 - Document 6 (E.D. Cal. 2018)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/12/18 DIRECTING the clerk to randomly assign a district judge. Senior Judge William B. Shubb added. It is further RECOMMENDED that 2 Motion to P roceed IFP be Denied and plaintiff be ordered to pay the filing fee. Referred to Judge William B. Shubb. Objections due within 14 days after being served with these findings and recommendations. New Case Number: 2:18-cv-3155-WBS-KJN (PC). (Coll, A)
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(PC) Joseph v. Horwitz et al Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALONZO JOSEPH, 12 13 14 No. 2: 18-cv-3155 KJN P Plaintiff, v. E. HORWITZ, et al., 15 ORDER AND FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant 18 to 42 U.S.C. § 1983. Plaintiff has requested leave to proceed in forma pauperis. For the reasons 19 stated herein, the undersigned recommends that plaintiff’s request to proceed in forma pauperis 20 be denied. 21 22 28 U.S.C. § 1983 provides, 25 In no event shall a prisoner bring a civil action … [in forma pauperis] if the prisoner has, on 3 or more 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 Court records indicate that plaintiff has previously had three cases dismissed at the 23 24 27 screening stage for failure to state a claim. They are: (1) Joseph v. California Prison Authority, 28 et al., 2:13-cv-122 CKD P (dismissed June 4, 2013); (2) Joseph v. Smith, 2:12-cv-1935 CMK P, 1 Dockets.Justia.com 1 (dismissed February 25, 2016); and (3) Joseph v. Heatley, 2:13-cv-00879 CMK P (dismissed 2 September 22, 2016). 3 Plaintiff would still be entitled to proceed in forma pauperis if his complaint indicated that 4 he was in imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Andrews v. 5 Cervantes, 493 F.3d 1047, 1049-50 (9th Cir. 2007). Plaintiff’s claims do not, however, indicate 6 such a danger. In this action, plaintiff seeks money damages for allegedly inadequate medical 7 care he received while housed at Mule Creek State Prison (“MCSP”). The three named 8 defendants are doctors employed at MCSP. At the time plaintiff filed this action he was housed 9 at R.J. Donovan Correctional Facility (“RJDCF”). Plaintiff is still housed at RJDCF. Because 10 plaintiff was no longer housed at MCSP when he filed this action, the alleged inadequate medical 11 care he received at MCSP does not constitute an imminent danger. 12 13 14 15 16 17 For the reasons discussed above, the undersigned recommends that plaintiff’s request to proceed in forma pauperis be denied, and plaintiff be ordered to pay the filing fee. Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a district judge to this action; and IT IS HEREBY RECOMMENDED that plaintiff s application to proceed in forma pauperis (ECF No. 2) be denied and plaintiff be ordered to pay the $400 filing fee. 18 These findings and recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 20 after being served with these findings and recommendations, plaintiff may file written objections 21 with the court and serve a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that 23 failure to file objections within the specified time may waive the right to appeal the District 24 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: December 12, 2018 26 27 28 Jo3155.56 2