(PC) Quair v. Santuro ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID SABINO QUAIR, III, Case No. 1:20-cv-00395-BAM (PC) 12 Plaintiff, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO 13 v. ACTION 14 SANTURO, et al., FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION 15 Defendants. FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED 16 (ECF No. 7) 17 FOURTEEN (14) DAY DEADLINE 18 19 Plaintiff David Sabino Quair, III (“Plaintiff”) is a state prisoner proceeding pro se in this 20 civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on March 12, 2020, 21 in the Sacramento Division of the United States District Court for the Eastern District of 22 California. (ECF No. 1.) This action was transferred to the Fresno Division on March 18, 2020. 23 (ECF No. 3.) On March 19, 2020, the Court ordered Plaintiff to submit a completed application 24 to proceed in forma pauperis or pay the filing fee to proceed with this action. (ECF No. 5.) 25 Currently before the Court is Plaintiff’s motion to proceed in forma pauperis, filed April 6, 2020. 26 (ECF No. 7.) 27 Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no event shall a 28 prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more prior 1 occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of 2 the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 3 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 4 physical injury.”1 5 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy 6 the imminent danger exception to section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 7 1053−55 (9th Cir. 2007). Plaintiff raises claims regarding denial of access to courts, disciplinary 8 proceedings, excessive force by an officer, threat to safety, medical care, and retaliation. (ECF 9 No. 1.) All of the named defendants are employees of North Kern State Prison in Delano, 10 California. However, at the time the complaint was filed, Plaintiff was housed at California 11 Men’s Colony in San Luis Obispo, California. Therefore, Plaintiff has failed to allege that he was 12 in any imminent danger of serious physical injury at the time the complaint was filed, because he 13 is no longer housed at the institution where the violations allegedly occurred. Plaintiff has not 14 satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g), and Plaintiff must 15 pay the $400.00 filing fee if he wishes to litigate this action. 16 Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a 17 District Judge to this action. 18 /// 19 1 The Court notes that Plaintiff claims to have filed more than fifty lawsuits while incarcerated. (ECF No. 1, 20 p. 2.) The Court also takes judicial notice of the following United States District Court Cases: (1) Quair v. CDCR – Office of Internal Affairs, Case No. 3:19-cv-03136-JD (N.D. Cal.) (dismissed November 6, 2019, for failure to state a 21 claim following failure to file an amended complaint in response to a screening order dismissing complaint for failure to state a claim); (2) Quair v. Garratt, Case No. 3:19-cv-08420-JD (N.D. Cal.) (dismissed January 23, 2020, as 22 duplicative of pending habeas case, where bar was apparent on face of complaint and complaint sought only damages); (3) Quair v. United States Dist. Ct., Case No. 8:19-cv-02392-JLS-DFM (C.D. Cal.) (dismissed February 23 28, 2020, as frivolous); and (4) Quair v. San Mateo Cty. Jail, Case No. 3:19-cv-08421-JD (N.D. Cal.) (dismissed March 9, 2020, for failure to state a claim). 24 The Court also takes judicial notice of the following United States Court of Appeals case: Quair v. Fuller, Case No. 19-16522 (9th Cir.) (dismissed November 20, 2019, as frivolous). 25 See Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017) (“[W]hen we review a dismissal to determine whether it counts as a strike, the style of the dismissal or the procedural posture is immaterial. Instead, the central question is whether the dismissal rang the PLRA bells of frivolous, malicious, or failure to state a claim.”) (citing El- 26 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016)) (internal quotations omitted); Washington v. L.A. Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1057 (9th Cir. 2016) (a dismissal as Heck-barred may count as a strike if the Heck 27 bar is apparent on the face of the complaint and the case seeks only damages as opposed to injunctive relief). 28 2 The Court expresses no opinion on the merits of Plaintiff’s claims. 1 Further, it is HEREBY RECOMMENDED that: 2 1. The motion to proceed in forma pauperis (ECF No. 7) be DENIED, pursuant to 28 3 U.S.C. § 1915(g); and 4 2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with this 5 action. 6 These Findings and Recommendations will be submitted to the United States District 7 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 8 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may 9 file written objections with the court. The document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file 11 objections within the specified time may result in the waiver of the “right to challenge the 12 magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 13 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 IT IS SO ORDERED. 15 16 Dated: April 8, 2020 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28