(PC) Hairston v. CDCR ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBEY HAIRSTON, Case No. 1:20-cv-01226-JLT (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF’S MOTION TO 13 v. PROCEED IN FORMA PAUPERIS AND DISMISS ACTION 14 CDCR, et al., (Doc. 2) 15 Defendants. 14-DAY DEADLINE 16 Clerk of the Court to Assign a District Judge 17 18 Before the Court is Plaintiff’s application to proceed in forma pauperis pursuant to 28 19 U.S.C. § 1915. (Doc. 2.) Because Plaintiff has more than three “strikes” under section 1915(g) 20 and fails to show that he is in imminent danger of serious physical injury, the Court recommends 21 that his application be denied and this action dismissed. 22 I. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915 23 “In no event shall a prisoner bring a civil action … under this section if the prisoner has, 24 on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or 25 appeal in a court of the United States that was dismissed on the grounds that it is frivolous, 26 malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under 27 imminent danger of serious physical injury.” 28 U.S.C. § 1915(g). /// 1 II. DISCUSSION 2 The Court takes judicial notice of five of Plaintiff’s prior cases that courts dismissed 3 because they were frivolous, malicious, or failed to state a claim on which relief may be granted:1 4 (1) Hairston v. Union Bank of California, No. 5:14-cv-01299-UA-MAN (C.D. Cal. July 9, 2014); 5 (2) Hairston v. Richardson, et al., No. 2:10-cv-07853-UA-MLG (C.D. Cal. Dec. 15, 2010); 6 (3) Hairston v. California Lottery, No. 2:10-cv-07851-UA-MLG (C.D. Cal. Dec. 15, 2010); 7 (4) Hairston v. Bozanifh, et al., No. 8:10-cv-01652-UA-MLG (C.D. Cal. Nov. 8, 2010); and 8 (5) Hairston v. Judge Hudson, et al., No. 5:10-cv-00750-UA-MLG (C.D. Cal. May 28, 2010). 9 The courts dismissed these cases before Plaintiff initiated the current action on August 21, 2020. 10 Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless, at the 11 time he filed his complaint, he was under imminent danger of serious physical injury. See 12 Andrews v. Cervantes, 493 F.3d 1047, 1052-53 (9th Cir. 2007). 13 The claims in Plaintiff’s complaint are frivolous. Plaintiff states that he tested positive for 14 COVID-19 on August 11, 2020. (Doc. 1 at 3.) He alleges that, because he tested negative back in 15 June, prison healthcare personnel “lied” about and “falsifie[d]” the August test results, claiming 16 that he has COVID-19 when, in fact, he does not. (Id. at 3, 4, 5.) Plaintiff contends that prison 17 doctors and nurses “are committing fraud, discriminating on minorities.” (Id. at 3, 4.) 18 Additionally, he alleges that he “should have had [his] ass[ault] case dismissed,” and that 19 California judges conspired to commit fraud. (Id. at 4.) Plaintiff sues President Trump and 20 Governor Newsom, among others, for $999 trillion for “false imprison[ment]” and “fraud.” (Id.) 21 Plaintiff’s allegations are fanciful and irrational. Plaintiff’s complaint is therefore 22 frivolous, see Denton v. Hernandez, 504 U.S. 25, 32-33 (1992), and accordingly fails to show that 23 he is imminent danger of serious physical injury. The complaint’s frivolousness also provides an 24 alternative ground for dismissing this action. See id. at 31; 28 U.S.C. § 1915(e)(2)(B)(i). 25 III. CONCLUSION AND RECOMMENDATIONS 26 Based on the foregoing, the Court RECOMMENDS that: 27 1. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) be DENIED; and, 1 2. This action be DISMISSED without prejudice to refiling upon prepayment of the 2 filing fee. 3 The Court DIRECTS the Clerk of the Court to assign a district judge to this action. 4 These Findings and Recommendations will be submitted to the United States District 5 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 6 of the date of service of these Findings and Recommendations, Plaintiff may file written 7 objections with the Court. The document should be captioned, “Objections to Magistrate Judge’s 8 Findings and Recommendations.” Plaintiff’s failure to file objections within the specified time 9 may result in waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 10 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 IT IS SO ORDERED. 12 13 Dated: September 2, 2020 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27