(PC) Driver v. Grubb ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 BILLY DRIVER, JR., Case No. 2:23-cv-00209-DAD-JDP (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS 11 v. 12 GRUBB, et al., 13 Defendants. 14 15 16 17 18 19 As I noted in my previous order, plaintiff, who seeks to proceed in forma pauperis, is a 20 “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). He has, in other words, filed 21 three cases that have been dismissed for failure to state a claim. Plaintiff was identified as a 22 three-striker in Driver v. U.S. Special Master, No. 1:17-cv-0202-DAD-BAM, at ECF Nos. 7 & 9.1 23 Plaintiff does not dispute that he is a three-striker but alleges that he should be allowed to proceed 24 in forma pauperis because he is in imminent danger of serious physical injury. ECF No. 10 at 1. 25 The allegations in his complaint are inadequate to make this showing. Accordingly, I recommend 26 1 In that case, the magistrate judge found that plaintiff had filed three cases dismissed for 27 failure to state a claim: (1) Driver v. Martel, Case No. 2:08-cv-01910-GEB-EFB (E.D. Cal.); (2) Driver v. Kelso, Case No. 2:11-cv-02397-EFB (E.D. Cal.); and (3) Driver v. Epp, Case No. 28 2:12-cv-00589-EFB (E.D. Cal.). 1 that his application to proceed in forma pauperis be denied and that plaintiff be directed to tender 2 the full filing fee before proceeding. 3 As before, plaintiff vaguely alleges that he is being forcibly medicated with an anti- 4 psychotic medication. ECF No. 10 at 3. He claims that the medication causes chest pains, heart 5 palpitations, halitosis, and that the injections themselves are painful. Id. The medications are 6 allegedly being administered pursuant to a state court order, but plaintiff alleges that he was 7 refused entry to the last relevant court hearing by a correctional officer. Id. 8 This is not plaintiff’s first case complaining about being subjected to involuntary anti- 9 psychotics. He raised similar claims in 2019, when he alleged that he was being given painful, 10 involuntary injections of medication. See Driver v. ADA 1824 Panels, No. 1:19-cv-1718 SAB 11 PC, 2019 U.S. Dist. LEXIS 216896, *4 (E.D. Cal. Dec. 17, 2019) (adopted at Driver v. ADA 1824 12 Panels, No. 1:19-cv-01718-DAD-SAB (PC), 2020 U.S. Dist. LEXIS 110911, *2-3 (E.D. Cal. 13 Jun. 24, 2020)). The court found at that time that his claims regarding the injections were too 14 vague and conclusory to establish imminent danger of physical harm. Id. at *5. Plaintiff 15 complained about involuntary injections again in 2022, and, once again, the court found his 16 allegations insufficient to show imminent danger. Driver v. Best, No. 2:22-cv-01542-DB-P, 2022 17 U.S. Dist. LEXIS 199617, *5 (E.D. Cal. Nov. 1, 2022) (adopted at Driver v. Best, No. 2:22-cv- 18 01542-TLN-DB-P, 2023 U.S. Dist. LEXIS 21397, *1 (E.D. Cal. Feb. 8, 2023). The court based 19 its finding, in part, on the fact that plaintiff’s “claims also appear to date back to at least 2019 20 when another court also found that plaintiff's claims of painful injections were inadequate to show 21 imminent danger.” Id. 22 I find that plaintiff’s claims regarding his injections are insufficient to establish imminent 23 danger. It appears that plaintiff has been under an involuntary medication order since at least 24 2019, and nothing in his current complaint indicates that a sudden, new risk factor has emerged. 25 Indeed, plaintiff’s complaint acknowledges receiving the injections in May 2022, some eight 26 months before the initial complaint was filed in this case. ECF No. 10 at 4 (alleging that the pill 27 form of his medication was “abruptly discontinued” and that he was put back on injections). 28 Plaintiff apparently disagrees that the medication is necessary, and it may be that the injections 1 | have undesirable side effects, but he has not made out a claim of imminent danger. 2 Accordingly, it is RECOMMENDED that plaintiff's application to proceed in forma 3 || pauperis, ECF No. 2, be DENIED and that he be directed to tender the full filing fee within 4 | fourteen days of any order adopting these findings and recommendations. 5 These findings and recommendations are submitted to the United States District Judge 6 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 7 | after being served with these findings and recommendations, any party may file written 8 | objections with the court and serve a copy on all parties. Such a document should be captioned 9 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 10 | objections shall be served and filed within fourteen days after service of the objections. The 11 | parties are advised that failure to file objections within the specified time may waive the right to 12 || appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 13 | v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 1s IT IS SO ORDERED. 16 | 1 Sty — Dated: _ June 16, 2023 a——— 17 JEREMY D. PETERSON 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28