(PC) Taylor v. Covello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON LA’SHAUN TAYLOR, No. 2:20-cv-2026-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PATRICK COVELLO, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). For the 19 reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to proceed 20 in forma 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). Court records reflect that on at least three prior occasions, plaintiff has 27 brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to 28 state a claim upon which relief may be granted. See (1) Taylor v. Winn, No. 2:12-cv-1584-CKD 1 (E.D. Cal.), ECF No. 7 (July 19, 2012 order dismissing action for failure to state a claim upon 2 which relief could be granted); (2) Taylor v. Boyle, No. 2:12-cv-1854-GGH (E.D. Cal.), ECF No. 3 7 (October 12, 2012 order dismissing action after plaintiff failed to submit an amended complaint 4 within allotted time following dismissal of complaint for failure to state a claim); (3) Taylor v. 5 Solano County Public Defenders Office, No. 2:18-cv-2517-WBS-CKD (E.D. Cal.) (May 13, 2019 6 order dismissing action after plaintiff failed to submit an amended complaint within allotted time 7 following dismissal of complaint for failure to state a claim); (4) Taylor v. Solano County Public 8 Defenders Office, No. 2:20-cv-0355-KJM-EFB (E.D. Cal.) (August 17, 2020 order dismissing 9 action after plaintiff failed to submit an amended complaint within allotted time following 10 dismissal of complaint for failure to state a claim); and (5) Taylor v. Amador County Public 11 Defenders Office, No.2:19-cv-2242-KJM-DMC (E.D. Cal.) (September 29, 2020 order dismissing 12 action after plaintiff failed to submit an amended complaint within allotted time following 13 dismissal of complaint for failure to state a claim). 14 The section 1915(g) exception applies if the complaint makes a plausible allegation that 15 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 16 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff 17 alleges that he was denied a Halal diet in violation of his religious rights. See ECF No. 1. These 18 allegations fail to demonstrate that plaintiff was under an imminent danger of serious physical 19 injury when he filed this action. Plaintiff’s application for leave to proceed in forma pauperis 20 must therefore be denied pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in 21 order to proceed with this action. 22 Accordingly, IT IS ORDERED that the Clerk randomly assign a United States District 23 Judge to this action. 24 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma 25 pauperis, IT IS RECOMMENDED that: 26 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 5) be denied; and 27 ///// 28 ///// 1 2. Plaintiff be ordered to pay the $400 filing fee within fourteen days from the date of any 2 || order adopting these findings and recommendations and be warned that failure to do so will result 3 | in the dismissal of this action. 4 These findings and recommendations are submitted to the United States District Judge 5 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 6 || after being served with these findings and recommendations, any party may file written 7 || objections with the court and serve a copy on all parties. Such a document should be captioned 8 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 9 | within the specified time may waive the right to appeal the District Court’s order. Turner v. 10 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 11 | Dated: November 12, 2020. 12 tid, PDEA B EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28