(PC) Driver v. McClough ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR., Case No. 2:21-cv-01142-JAM-JDP (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF’S APPLICATION TO 13 v. PROCEED IN FORMA PAUPERIS BE DENIED 14 MCLOUGH, et al., ECF No. 6 15 Defendants. FOURTEEN-DAY DEADLINE 16 17 18 19 20 21 Plaintiff has filed a request to proceed in forma pauperis, ECF No. 6. He is, as I 22 explained in my previous order, ECF No. 12, a “three-striker” within the meaning of Title 28 23 U.S.C. § 1915(g). Plaintiff was previously determined to have filed at least three cases that were 24 dismissed for failure to state a viable claim. See Driver v. U.S. Special Master, No. 1:17-cv- 25 0202-DAD-BAM (E.D. Cal. 2018) at ECF Nos. 7 & 9.1 Three-strikers may still proceed in forma 26 1 In this case, Judge McAuliffe found that plaintiff had filed three cases that were 27 dismissed for failure to state a claim: (1) Driver v. Martel, Case No. 2:08-cv-01910-GEB-EFB (E.D. Cal.) (dismissed September 16, 2009, for failure to state a claim); (2) Driver v. Kelso, Case 28 No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed September 12, 2012, for failure to state a claim); 1 pauperis if their complaint makes a showing of imminent physical danger. 28 U.S.C. § 1915(g). 2 Plaintiff’s last complaint did not make that showing, and I offered him a chance to amend. ECF 3 No. 12 at 2. He has filed a second amended complaint, which also fails to allege that he is in 4 imminent danger of physical harm. Accordingly, I will recommend that his application to 5 proceed in forma pauperis be denied. 6 Plaintiff alleges that, on June 21, 2021, he was attacked by another inmate who acted on 7 behalf of defendant McClough and two other non-defendant correctional officers. ECF No. 13 at 8 3. He allegedly sustained injuries to his lips and nose during the fight. Id. Crucially, however, 9 he does not allege that another attack by this inmate (or by some other inmate on defendant’s 10 orders) is imminent or likely. The remainder of his complaint is composed of various 11 uncontextualized grievance and medical documents. 12 I have already given plaintiff a chance to amend and explain why he fits into 1915(g)’s 13 imminent danger exception. He has failed to do so and I now recommend that his application to 14 proceed in forma pauperis be denied. If he wishes to proceed with this suit, he must first pay the 15 filing fee. 16 Accordingly, it is RECOMMENDED that: 17 1. Plaintiff’s application to proceed in forma pauperis, ECF No. 6, be DENIED. 18 2. Plaintiff be directed to pay the full filing fee within fourteen days of any order 19 adopting these recommendations. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, plaintiff may file written objections 23 with the court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 24 and Recommendations.” Failure to file objections within the specified time may waive the right 25 to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); 26 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 27 and (3) Driver v. Epp, Case No. 2:12-cv-00589-EFB (E.D. Cal.) (dismissed September 5, 2012, 28 for failure to state a claim). 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ June 3, 2022 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28