(PC) Brown v. Garcia ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEXTER BROWN, No. 2:19-cv-1677-TLN-EFB P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 GARCIA, 15 Defendant. 16 17 Plaintiff, a state prisoner proceeding without counsel in an action brought under 42 U.S.C. 18 § 1983, seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the reasons 19 stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma 20 pauperis. 21 A prisoner may not proceed in forma pauperis: 22 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 23 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 24 serious physical injury. 25 26 28 U.S.C. § 1915(g). 27 ///// 28 ///// 1 Court records (and plaintiff’s own complaint, ECF No. 1 at 2) show that plaintiff has been 2 designated a three-strikes litigant for purposes of § 1915(g).1 Further, plaintiff’s complaint fails 3 to allege facts that adequately demonstrate he is under imminent danger of serious physical 4 injury.2 Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied 5 pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with 6 this action. 7 Accordingly, IT IS RECOMMENDED that: 8 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 6) be denied; and 9 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 10 order adopting these findings and recommendations and be admonished that failure to do so will 11 result in the dismissal of this action. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 ///// 18 ///// 19 ///// 20 ///// 21 1 See Brown v. Sagireddy, No. 2:17-cv-2041-KJM-AC (E.D. Cal. May 2, 2018), ECF No. 22 14. 23 2 Plaintiff claims he was poisoned with potassium on August 24, 2019. ECF No. 1 at 2. 24 The U.S. Court of Appeals for the Ninth Circuit Court has previously found that these allegations -- which plaintiff has a lengthy history of making -- were not sufficient to show imminent danger 25 of serious physical injury. See Brown v. California, Case No. 17-17527, 2018 U.S. App. LEXIS 26 20131 (9th Cir. Jul. 19, 2018), ECF No. 13 (denying plaintiff’s motion for leave to proceed in forma pauperis on appeal). Plaintiff’s ongoing similar complaints, as alleged here, do not warrant 27 a different outcome. See Brown v. United States, No. 2:18-cv-3197-KJN (E.D. Cal. May 1, 2019) (noting plaintiff’s history of alleging his life is in danger due to potassium toxicity and finding 28 that such allegations did not suggest he was under imminent danger of serious physical injury). 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: April 9, 2020. ‘ tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28