(PC) Chinsami v. Lozano ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHU CHINSAMI, No. 2:19-cv-2298-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 JARED LOZANO, Warden, 15 Defendant. 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) Chinsami v. Silbaugh, No. 2:12-cv-2202- 1 DAD (E.D. Cal.), ECF No. 12 (July 22, 2013 order dismissing action as frivolous and for failure 2 to state a claim upon which relief could be granted); (2) Chinsami v. Harrison, No. 2:13-cv-1124- 3 CKD (E.D. Cal.), ECF No. 10 (September 17, 2013 order dismissing action after plaintiff failed 4 to submit an amended complaint within allotted time following dismissal of complaint for failure 5 to state a claim); (3) Chinsami v. Singh, No. 2:14-cv-461-EFB (E.D. Cal.), ECF No. 7 (May 21, 6 2014 order dismissing action as frivolous); (4) Chinsami v. Fox, No. 2:16-cv-2461-EFB (E.D. 7 Cal.), ECF No. 6 (May 1, 2017 order dismissing action as frivolous); and (5) Chinsami v. Fox, 8 No. 2:16-cv-2153 (E.D. Cal.), ECF Nos. 7, 10 (July 8, 2019 order dismissing action as frivolous). 9 The section 1915(g) exception applies if the complaint makes a plausible allegation that 10 the prisoner faced “imminent danger of serious physical injury” at the time of filing. 28 U.S.C. 11 § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007). In this case, plaintiff’s 12 filings repeat the allegations that have previously been deemed “frivolous” by this court, i.e., that 13 “CDCR illegally planted a computer programmer eye lens.” ECF No. 1 at 1; ECF No. 5 at 1. He 14 also alleges that he is being pressured by the warden and a “gay” inmate, who control and harass 15 him “day and night” by a “computer speech voice.” ECF No. 5. at 1. Further, he seeks an order 16 to relieve him from the court-ordered medication he has been subject to for fifteen years. ECF 17 No. 1. at 1. These allegations fail to demonstrate that plaintiff was under an imminent danger of 18 serious physical injury when he filed this action. Plaintiff’s application for leave to proceed in 19 forma pauperis must therefore be denied pursuant to § 1915(g). Plaintiff must submit the 20 appropriate filing fee in order to proceed with this action. 21 Accordingly, IT IS HEREBY ORDERED that the Clerk randomly assign a United States 22 District Judge to this case. 23 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma 24 pauperis, IT IS HEREBY RECOMMENDED that: 25 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 11) be denied; and 26 ///// 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)(1). 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: February 4, 2020. 12 Doolin Sx Lom 13 EDMUND F. BRENNAN 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28