(PC) Barnes v. Lavorato, Jr ( 2023 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ANTOINE DESHAWN BARNES, No. 2:23-cv-0534-DJC-EFB (PC) 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 SAM LAVORATO, Jr., et al., 14 Defendants. 15 16 Plaintiff, a state prisoner proceeding without counsel, has filed a civil rights complaint. 17 ECF No. 1. He seeks leave to proceed in forma pauperis (“IFP”). See 28 U.S.C. § 1915(a). For 18 the reasons stated below, the court finds that plaintiff has not demonstrated he is eligible to 19 proceed in forma pauperis. 20 A prisoner may not proceed in forma pauperis: 21 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 22 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 23 serious physical injury. 24 25 28 U.S.C. § 1915(g). A review of court records reveals that it was determined in Barnes v. 26 Harris, No. 2:21-cv-08336-PA-KES (E.D. Cal. Oct. 26, 2021) and in Barnes v. Wolf, No. 1:22- 27 cv-00955-ADA-SKO (E.D. Cal. Sept. 6, 2022), 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, the complaint does 4 | not allege that plaintiff faced an imminent danger of serious physical injury at the time plaintiff 5 || filed the complaint. See ECF No. | (alleging he is wrongfully imprisoned). Plaintiffs 6 || application for leave to proceed in forma pauperis must therefore be denied pursuant to § 1915(g). 7 || Plaintiff must submit the appropriate filing fee in order to proceed with this action. 8 Accordingly, because plaintiff has not paid the filing fee and is not eligible to proceed in 9 || forma pauperis, it is RECOMMENDED that: 10 1. Plaintiffs application to proceed in forma pauperis (ECF No. 2) be denied; and 11 2. Plaintiff be ordered to pay the $402 filing fee within fourteen days from the date of any 12 || order adopting these findings and recommendations and be warmed that failure to do so will result 13 || in the dismissal of this action. 14 These findings and recommendations are submitted to the United States District Judge 15 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 16 || after being served with these findings and recommendations, any party may file written 17 || objections with the court and serve a copy on all parties. Such a document should be captioned 18 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 19 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 20 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 21 22 | Dated: May 25, 2023. tid EDMUND F. BRENNAN 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28