Quair v. Cru ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 DAVID SABINO QUAIR, III, Case No. 1:21-cv-00560-NONE-SKO 10 Plaintiff, ORDER VACATING AMENDED ORDER GRANTING PLAINTIFF’S MOTION TO 11 PROCEED IN FORMA PAUPERIS 12 v. FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION TO 13 OFFICER CRU, et al., PROCEED IN FORMA PAUPERIS 14 Defendants. (Docs. 2 & 4) 15 F OURTEEN (14) DAY DEADLINE _____________________________________/ 16 17 18 19 On April 2, 2021, Plaintiff David Sabino Quair, III (“Plaintiff”), a state prisoner proceeding 20 pro se, filed a civil rights action pursuant to 42 U.S.C. § 1983 (Doc. 1) and requested leave to 21 proceed in forma pauperis pursuant to 28 U.S.C. § 1915 (“Section 1915”) (Doc. 2). On April 8, 22 2021, the Court granted Plaintiff’s application to proceed in forma pauperis. (Doc. 4.) As Plaintiff 23 has at least three “strikes” under Section 1915(g), the amended order granting leave to proceed in 24 forma pauperis (Doc. 4) will be vacated. 25 As a state prisoner, Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n no 26 event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more 27 prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court 28 of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state 1 a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious 2 physical injury.” 3 The Court notes that Plaintiff claims to have filed more than fifty lawsuits while incarcerated. 4 (Doc. 1 at 2.) The Court also takes judicial notice of the following eight United States District Court 5 Cases: (1) Quair v. CDCR HQ, No. 2:19–cv–01106–KJM–DB (E.D. Cal.) (dismissed January 21, 6 2021, for failure to state a claim); (2) Quair v. CDCR-HQ, No. 5:18–cv–02595 PSG (ADS) (C.D. 7 Cal.) (dismissed January 21, 2021, for failure to state a claim); (3) Quair v. Speer, No. 3:20–cv– 8 00222–JD (N.D. Cal.) (dismissed June 22, 2020, for failure to state a claim following failure to file 9 an amended complaint in response to a screening order dismissing complaint for failure to state a 10 claim); (4) Quair v. San Mateo Cty. Jail, No. 3:19–cv–08421–JD (N.D. Cal.) (dismissed March 9, 11 2020, for failure to state a claim); (5) Quair v. Brown, No. 3:20–cv–00716–JD (N.D. Cal.) 12 (dismissed April 17, 2020, for failure to state a claim following failure to file an amended complaint 13 in response to a screening order dismissing complaint for failure to state a claim); (6) Quair v. San 14 Mateo Cty. Jail, No. 3:19–cv–08463–JD (N.D. Cal.) (dismissed April 30, 2020, for failure to state 15 a claim); (7) Quair v. United States Dist. Ct., No. 8:19–cv–02392–JLS–DFM (C.D. Cal.) (dismissed 16 February 28, 2020, as frivolous); and (8) Quair v. CDCR–Office of Internal Affairs, No. 3:19–cv– 17 03136–JD (N.D. Cal.) (dismissed November 6, 2019, for failure to state a claim following failure to 18 file an amended complaint in response to a screening order dismissing complaint for failure to state 19 a claim).1 Each of these eight cases constitutes a “strike” under Section 1915(g) because the cases 20 were dismissed either as frivolous or for failure to state a claim before Plaintiff initiated the current 21 action on April 2, 2021. Thus, as Plaintiff has at least three strikes, he is precluded from proceeding 22 in forma pauperis unless, at the time he filed his complaint, he was under imminent danger of serious 23 physical injury. See 28 U.S.C. § 1915(g). 24 The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy the 25 imminent danger exception to Section 1915(g).2 Andrews v. Cervantes, 493 F.3d 1047, 1053−55 26 (9th Cir. 2007). Plaintiff raises claims regarding denial of access to courts, retaliation, and failure 27 1 The Court may take judicial notice of court records. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 28 1 to safeguard his property. (Doc. 1.) There are no allegations in the complaint that Plaintiff was in 2 any imminent danger of serious physical injury at the time the complaint was filed. (See Doc. 1.) 3 Thus, Plaintiff has not satisfied the exception from the “three strikes” bar under 28 U.S.C. § 1915(g), 4 and Plaintiff must pay the $402.00 filing fee if he wishes to litigate this action. 5 Accordingly, the Court hereby VACATES the amended order granting Plaintiff’s 6 application to proceed in forma pauperis (Doc. 4). 7 Further, it is HEREBY RECOMMENDED that: 8 1. The motion to proceed in forma pauperis (Doc. 2) be DENIED, pursuant to 28 U.S.C. 9 § 1915(g); and 10 2. Plaintiff be ORDERED to pay the $402.00 initial filing fee in full to proceed with 11 this action. 12 These Findings and Recommendations will be submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 14 days after being served with these Findings and Recommendations, Plaintiff may file written 15 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 16 Findings and Recommendation.” Plaintiff is advised that the failure to file objections within the 17 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 18 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 19 F.2d 1391, 1394 (9th Cir. 1991)). 20 IT IS SO ORDERED. 21 Sheila K. Oberto 22 Dated: April 20, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28