(PC) Evans v. Milam ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICHARD A. EVANS, Case No. 1:20-cv-00070-JDP 11 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO PROCEED IN FORMA 12 v. PAUPERIS AND REQUIRE PAYMENT OF FILING FEE IN FULL WITHIN TWENTY- 13 R. MILAM, et al. ONE DAYS 14 Defendants. ECF No. 2 15 OBJECTIONS DUE WITHIN 14 DAYS 16 ORDER TO ASSIGN CASE TO DISTRICT JUDGE 17 18 19 Plaintiff Richard A. Evans is a state prisoner proceeding without counsel in this civil 20 rights action brought under 42 U.S.C. § 1983. On January 14, 2020, plaintiff filed an application 21 to proceed in forma pauperis under 28 U.S.C. § 1915. ECF No. 2. 22 The Prison Litigation Reform Act provides that “[i]n no event shall a prisoner bring a civil 23 action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or 24 detained in any facility, brought an action or appeal in a court of the United States that was 25 dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief 26 may be granted, unless the prisoner is under imminent danger of serious physical injury.” 28 27 U.S.C. § 1915(g). Plaintiff has had three or more actions dismissed as frivolous, as malicious, or 28 1 for failing to state a claim upon which relief maybe granted.1 Plaintiff has been informed on 2 previous occasions that he is subject to § 1915(g).2 Plaintiff has also not satisfied the imminent 3 danger exception to § 1915(g). See Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 4 2007). Plaintiff’s cursory allegations about leaking and flooding do not show that he was in any 5 imminent, personal danger at the time of filing, and do not describe any actions of the defendants 6 or connect any of the defendants to the alleged harm. 7 Accordingly, plaintiff’s in forma pauperis applications should be denied, and he should 8 pay the filing fee in full, since he has accrued three or more strikes and has not shown that he was 9 under imminent danger of serious physical harm at the time that this action was initiated. 10 Order 11 The clerk of court is directed to assign this case to a district judge who will review the 12 findings and recommendations. 13 Findings and Recommendations 14 Based on the foregoing, it is hereby recommended that: 15 1. plaintiff’s in forma pauperis application, ECF No. 2, be denied; 16 2. plaintiff be required to pay the $400 filing fee in full within twenty-one days of adoption 17 of these findings and recommendations; and 18 3. if plaintiff fails to pay the $400 filing fee in full within twenty-one days of adoption of 19 these findings and recommendations, all pending motions be terminated, and this action 20 be dismissed without prejudice. 21 We submit these findings and recommendations to a district judge under 28 U.S.C. § 22 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 23 24 1 The cases include (1) Evans v. Cal. Dep’t of Corr. & Rehab., No. 2:17-cv-01891-JAM-KJN (E.D. Cal. 2018) (dismissed for failure to prosecute following a screening order finding that the complaint 25 failed to state a claim); (2) Evans v. Cal. Dep’t of Corr. & Rehab., No. 2:17-cv-01890-WBS-DB (E.D. Cal. 2018) (dismissed for failure to prosecute following a screening order finding that the 26 complaint failed to state a claim); and (3) Evans v. Suisun Police Dep’t, No. 2:17-cv-01889-KJM- 27 CMK (E.D. Cal. 2018) (dismissed in 2018 for failure to state a claim). 2 See Evans v. Siebel, et al., No. 1:19-cv-00819-LJO-SAB (E.D. Cal. 2019); Evans v. Sherman, et 28 al., No. 1:19-cv-00818-LJO-BAM (E.D. Cal. 2019). 1 | Eastern District of California. Within fourteen days of the service of the findings and 2 || recommendations, plaintiff may file written objections to the findings and recommendations with 3 | the court and serve a copy on all parties. That document should be captioned “Objections to 4 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 5 || and recommendations under 28 U.S.C. § 636(b)(1)(C). 6 7 IT IS SO ORDERED. Vy 2). —N prssann — Dated: _ January 25, 2020 9 UNI STATES MAGISTRATE JUDGE 10 11 12 | No. 205. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28