(PC) Arendas v. Vega ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 PETER JOHN ARENDAS, No. 2:19-cv-1332-TLN-EFB P 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 DUSTIN VEGA, 14 Defendant. 15 16 Plaintiff is a county inmate proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 18 reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed 19 in forma pauperis. 20 A prisoner may not proceed in forma pauperis: 21 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 22 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 23 serious physical injury. 24 25 28 U.S.C. § 1915(g). Court records reflect that plaintiff has been designated a three-strikes 26 litigant for purposes of § 1915(g). See Arendas v. Kessler, No. 09-6530 (KSH), 2010 U.S. Dist. 27 LEXIS 68309 (July 10, 2010, D.N.J.) (identifying plaintiff as a three-strikes litigant); see also 28 Arendas v. Somerset County Sheriff’s Dep’t, No. 3:09-cv-5782-FLW-TJB (June 16, 2010, D.N.J.) 1 | (dismissed for failure to state a claim); Arendas v. Hillsborough Police Dep’t., No. 3:09-cv-2965- 2 | MLC-DEA (July 2, 2010, D.N.J.) (dismissed for failure to state a claim); Arendas v. Hillsborough 3 || Police Dep’t., No. 09-5965 (July 2, 2010, D.N.J.) (dismissed for failure to state a claim); Arendas 4 | v. Somerset County Sheriff's Dep’t, No. 3:09-cv-6061-JAP-TJB (July 6, 2010, D.N.J.) (dismissed 5 || for failure to state a claim). 6 The section 1915(g) exception applies if the complaint makes a plausible allegation that 7 | the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 8 | § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). Here, the allegations do 9 || not demonstrate that plaintiff was under an imminent danger of serious physical injury when he 10 | filed this action. See ECF No. 1 (seeking damages for allegedly wrongful arrest). Plaintiff’ □ 11 | application for leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). 12 | Plaintiff must submit the appropriate filing fee in order to proceed with this action. 13 Accordingly, because plaintiff has not paid the filing fee and is not eligible to proceed in 14 | forma pauperis, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and 16 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 17 || order adopting these findings and recommendations and be warned that failure to do so will result 18 | in the dismissal of this action. 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)(). 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 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 25 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 26 || Dated: September 24, 2019. 27 Lilie ELEMA □□ EDMUND F. BRENNAN 28 UNITED STATES MAGISTRATE JUDGE