- 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALBERT EUGENE THOMAS, Case No. 1:19-cv-01185-JDP 12 Plaintiff, FINDINGS AND RECOMMENDATIONS DENYING MOTION TO PROCEED IN FORMA 13 v. PAUPERIS AND REQUIRING PAYMENT OF FILING FEE IN FULL WITHIN TWENTY-ONE 14 CAPTAIN CHENALO, et al., DAYS 15 Defendants. ECF No. 2 16 OBJECTIONS DUE WITHIN 14 DAYS 17 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 18 19 20 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 21 under 42 U.S.C. § 1983. On August 16, 2019, plaintiff filed an application to proceed in forma 22 pauperis under 28 U.S.C. § 1915. ECF No. 2. 23 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 24 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 25 detained in any facility, brought an action or appeal in a court of the United States that was 26 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 27 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 28 1 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 2 for failing to state a claim upon which relief maybe granted.1 3 Plaintiff has not satisfied the imminent danger exception to § 1915(g). See Andrews v. 4 Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). In his complaint, plaintiff contends that he 5 was not given his preferred cell placement. Plaintiff claims that he was housed in cells with poor 6 lighting, mold, and without available lower bunks. See ECF No. 1 at 4-8. Plaintiff does not, 7 however, allege that he is currently at risk of physical harm. 8 Accordingly, plaintiff’s in forma pauperis application should be denied, and he should 9 pay the filing fee in full, since he has accrued three or more strikes and was not under imminent 10 danger of serious physical harm at the time this action was initiated. See 28 U.S.C. § 1915(g). 11 Order 12 The clerk of court is directed to assign this case to a district judge who will review the 13 findings and recommendations. 14 Findings and Recommendations 15 Based on the foregoing, it is hereby recommended that: 16 1. plaintiff’s in forma pauperis application, ECF No. 2, be denied; 17 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 18 of these findings and recommendations; and 19 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 20 these findings and recommendations, all pending motions be terminated and this action 21 be dismissed without prejudice. 22 The undersigned submits the findings and recommendations to a district judge under 28 23 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District 24 Court, Eastern District of California. Within fourteen days of the service of the findings and 25 1 The cases include: (1) Thomas v. Shaffer, Case No. 15-15408 (9th Cir.) (finding the appeal to be frivolous on June 10, 2015, and dismissing the appeal on July 8, 2015); (2) Thomas v. Gomez, 26 Case No. 3:98-cv-00874-JM-LSP (S.D. Cal.) (dismissing the case for failure to state a claim on 27 December 13, 1999); and (3) Thomas v. Woodford, Case No. 2:04-cv-07989-JVS-VBK (C.D. Cal.) (adopting findings and recommendations to dismiss the case for failure to state a claim on 28 January 17, 2006). 1 | recommendations, plaintiff may file written objections to the findings and recommendations with 2 | the court. That document should be captioned “Objections to Magistrate Judge’s Findings and 3 | Recommendations.” The district judge will review the findings and recommendations under 28 4 1 US.C. § 636(b)(1)(C). 5 6 IT IS SO ORDERED. yl, N prssany — Dated: _ January 21, 2020 8 UNI STATE AGISTRATE JUDGE 9 10 11 | No. 204. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Document Info
Docket Number: 1:19-cv-01185
Filed Date: 1/22/2020
Precedential Status: Precedential
Modified Date: 6/19/2024