Favor VEXATIOUS LITIGANT v. Black Lives Matter ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRANDON ALEXANDER FAVOR, No. 1:20-cv-01165-DAD-SKO 12 Plaintiff, 13 v. ORDER DENYING REQUEST FOR EXTENSION OF TIME, ADOPTING 14 BLACK LIVES MATTER, et al., FINDINGS AND RECOMMENDATIONS, AND DENYING PLAINTIFF’S 15 Defendants. APPLICATION TO PROCEED IN FORMA PAUPERIS 16 (Doc. Nos. 3, 4, 8) 17 18 19 Plaintiff Brandon Alexander Favor is a state prisoner proceeding pro se in this civil rights 20 action brought pursuant to 42 U.S.C. § 1983. The matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On September 15, 2020, the assigned magistrate judge issued findings and 23 recommendations recommending that plaintiff’s application to proceed in forma pauperis be 24 denied on the grounds that his application did not establish indigency under 28 U.S.C. § 1915(a) 25 and, alternatively, that he is subject to the three strikes bar under § 1915(g). (Doc. No. 4.) 26 Specifically, as to the latter ground, the magistrate judge identified four actions brought by 27 plaintiff in the past that had been dismissed as a whole for failing to state a claim: (1) Favor-El v. 28 Rome, Case No. 1:15-cv-01865-LJO-EPG (E.D. Cal.); (2) Favor v. State of California, Case No. 1 2:16-cv-02870-JGB-JEM (C.D. Cal.); (3) Favor-El v. Rihanna, et al., 2:15-cv-09502-JGB-JEM 2 (C.D. Cal.); and (4) Favor-El v. United States of America, Case No. 2:15-cv-01448-GEB-AC 3 (E.D. Cal.). (Id.) Based upon those prior dismissals, the magistrate judge found that plaintiff is 4 subject to the three strikes bar under 28 U.S.C. § 1915(g) and that the allegations of his complaint 5 do not satisfy the “imminent danger of serious physical injury” exception to that bar. (Id.) The 6 findings and recommendations were served on plaintiff and contained notice that any objections 7 thereto were to be filed within twenty-one (21) days after service. (Id. at 4.) No objections have 8 been filed and the time in which to do so has now passed.1 9 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 10 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the 11 findings and recommendations are supported by the record and proper analysis. 12 Accordingly: 13 1. The findings and recommendations issued on September 15, 2020 (Doc. No. 4) are 14 adopted in full; 15 2. In accordance with 28 U.S.C. §§ 1915(a) and (g), plaintiff’s application to proceed 16 in forma pauperis (Doc. No. 3) is denied; 17 ///// 18 19 1 Rather than filing objections during the time allotted, plaintiff filed a document titled “State Relief” (Doc. No. 5) and another copy of his complaint attaching documents he has filed in other 20 court cases (Doc. No. 6.) Although difficult to discern, neither document articulates “specific fact allegations of ongoing serious physical injury, or a pattern of misconduct evidencing the 21 likelihood of imminent serious physical injury.” Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003). After the expiration of the objections period, plaintiff then filed a request for an extension 22 of seventy-two (72) days to file objections to the magistrate judge’s findings and 23 recommendations. (Doc. No. 8.) The basis for the requested extension of time is not discernable from plaintiff’s request, but, based on the attachments thereto, it appears to be plaintiff’s asserted 24 need for access to the prison library, which had been denied to him by prison officials because the objections period had already expired. (See id. at 3–4.) Plaintiff’s request does not show that his 25 failure to seek an extension prior to the expiration of the objections period was due to “excusable neglect,” as is required under Rule 6(b) of the Federal Rules of Civil Procedure. The request also 26 does not demonstrate why legal research is necessary, given that the magistrate judge’s findings 27 and recommendations set forth the clear legal standards by which plaintiff’s in forma pauperis application must be evaluated. Accordingly, plaintiff’s untimely request for an extension of time 28 to file objections (Doc. No. 8) is denied. 1 3. Within fourteen (14) days following service of this order, plaintiff shall pay the 2 $400.00 filing fee in full to proceed with this action; 3 4. Failure to pay the required filing fee in full within the specified time will result in 4 the dismissal of this case; and 5 5. The matter is referred back to the magistrate judge for proceedings consistent with 6 this order. 7 | ITIS SO ORDERED. a 8 Li. wh F Dated: _ November 20, 2020 See 1" S98 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28