(PC) Herrera v. Unknown ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERTO HERRERA, No. 2:21-cv-1170-EFB P 12 Plaintiff, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 UNKNOWN, 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). A review of court records from this court reveals that it was determined in 27 Herrera v. Ulit, No. 1:13-cv-1806-AWI-MJS, that plaintiff has “struck out” under 28 U.S.C. 28 § 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). Here, plaintiff alleges he 4 has suffered “off and on” from chest pains for many years. ECF No. 1 at 3. On June 9, 2021, he 5 allegedly reported chest pains to “RN Sandra.” Id. She allegedly did nothing to ensure that he 6 was not having a stroke or otherwise save his life. Without further elaboration, plaintiff states 7 that “this has not been the first time this has happened with CDCR HC Staff.” Id. Plaintiff does 8 not indicate whether he ever received medical care for the June 9th incident, or whether the chest 9 pains persist of have resolved. The allegations do not show that when plaintiff filed his complaint 10 on June 24, 2021, he faced an imminent danger of serious physical injury. 11 Plaintiff’s application for leave to proceed in forma pauperis must therefore be denied 12 pursuant to § 1915(g). Plaintiff must submit the appropriate filing fee in order to proceed with 13 this action. 14 Accordingly, it is ORDERED that the Clerk of the Court randomly assign a United States 15 District Judge to this action. 16 Further, because plaintiff has not paid the filing fee and is not eligible to proceed in forma 17 pauperis, it is RECOMMENDED that: 18 1. Plaintiff’s application to proceed in forma pauperis (ECF No. 2) be denied; and 19 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any 20 order adopting these findings and recommendations and be warned that failure to do so will result 21 in the dismissal of this action. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 27 ///// 28 ///// 1 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 3 || Dated: September 7, 2021. ‘ tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28