(PC)Driver v. CHCF ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER Jr., No. 2:21-cv-0744-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 CHCF, 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 that he is eligible to 20 proceed 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). A review of court records from this court reveals that it was determined in 27 Driver v. U.S. Special Master, No. 1:17-cv-0202-DAD-BAM, that plaintiff has “struck out” under 28 28 U.S.C. § 1915(g). 1 The section 1915(g) exception applies if the complaint makes a plausible allegation that 2 | the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 3 || § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff 4 || complains that he is being forcibly medicated. ECF No. | at 2. Plaintiff alleges that the 5 || psychotropic drugs are “literally killing” him, but the side effects he lists do not suggest this is the 6 || case. See id. at 2 (listing heart palpitations, baldness, halitosis, gynecomastia, hard black oily 7 || stools, and borderline diabetes). The complaint fails to demonstrate that plaintiff was under an 8 | imminent danger of serious physical injury when he filed this action. Plaintiffs application for 9 || leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must 10 || submit the appropriate filing fee in order to proceed with this action. 11 Accordingly, it is ORDERED that the Clerk of the Court randomly assign a United States 12 | District Judge to this action. 13 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma 14 || pauperis, it is RECOMMENDED that: 15 1. Plaintiffs application to proceed in forma pauperis (ECF No. 4) be denied; and 16 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any 17 || order adopting these findings and recommendations and be warned that failure to do so will result 18 || in the dismissal of this action. 19 These findings and recommendations are submitted to the United States District Judge 20 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(I1). Within fourteen days 21 || after being served with these findings and recommendations, any party may file written 22 || objections with the court and serve a copy on all parties. Such a document should be captioned 23 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 25 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 26 | Dated: June 14, 2021. 28 UNITED STATES MAGISTRATE JUDGE