(PC) Stevens v. Robinson ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LYRALISA LAVENA STEVENS, No. 1:22-cv-00742-DAD-EPG (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 ROBINSON, (Doc. No. 5) 15 Defendant. 16 17 Plaintiff Lyralisa Lavena Stevens is a state prisoner proceeding pro se in this civil rights 18 action filed pursuant to 42 U.S.C. § 1983. Plaintiff initially filed her complaint commencing this 19 action on June 17, 2022. (Doc. No. 1.) Plaintiff did not pay the required filing fee or file an 20 application to proceed in forma pauperis. The matter was referred to a United States Magistrate 21 Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On June 29, 2022, the assigned magistrate judge issued findings and recommendations, 23 recommending that plaintiff not be allowed to proceed in forma pauperis and instead be directed 24 to pay the required filing fee in full if she wishes to proceed with this action because: (1) she is 25 subject to the three strikes bar under 28 U.S.C. § 1915(g); and (2) the allegations in her complaint 26 do not satisfy the “imminent danger of serious physical injury” exception to § 1915(g). (Doc. 27 No. 5.) Those findings and recommendations were served on plaintiff and contained notice that 28 any objections thereto were to be filed within fourteen days from the date of service. (Id.) On 1 July 20, 2022, plaintiff filed objections to the findings and recommendations. (Doc. No. 6.) 2 Therein, plaintiff outlines her allegations against defendant and also objects to the magistrate 3 judge’s consideration of the dismissal orders in Stevens v. Mal, et al., No. 2:12-cv-00239-GEB- 4 KJN (E.D. Cal.) and Stevens v. Beard, 1:17-cv-01002-AWI-SAB (E.D. Cal.) as strikes pursuant 5 to 28 U.S.C. § 1915(g). (Id. at 4.) Additionally, plaintiff contends that she suffers from a brain 6 tumor, which would qualify as a foreseeable imminent danger, injury, or harm justifying her in 7 forma pauperis status. (Id. at 5.) The court does not find plaintiff’s arguments persuasive. With 8 respect to Stevens v. Mal, et al., the assigned magistrate judge correctly concluded that plaintiff’s 9 complaint in that action was dismissed “for repeating previously litigated claims in a way that 10 would be considered frivolous” and thus qualified as a strike under § 1915(g). (Doc. No. 5 at 3.) 11 Similarly, with respect to Stevens v. Beard, the assigned magistrate judge correctly determined 12 that that plaintiff’s complaint in that action was dismissed both for repeating previously litigated 13 claims and for failing to plausibly allege an Eighth Amendment violation. (Id. at 4.) 14 Accordingly, the dismissal of that case too qualified as a strike under § 1915(g). 15 Lastly, with regard to plaintiff’s real and imminent threat argument, the court is 16 sympathetic to plaintiff’s apparent illness, but that illness does not demonstrate that there is a real 17 and imminent threat to her personal safety or a “pattern of misconduct evidencing the likelihood 18 of imminent serious physical injury” as required to establish imminent danger. Martin v. Shelton, 19 319 F.3d 1048, 1050 (8th Cir. 2003). Moreover, “in order to qualify for the § 1915(g) imminent 20 danger exception, a three-strikes prisoner must allege imminent danger of serious physical injury 21 that is both fairly traceable to unlawful conduct alleged in [her]s complaint and redressable by 22 the court.” Ray v. Lara, 31 F.4th 692, 701 (9th Cir. 2022) (emphasis added). Plaintiff’s 23 unfortunate medical condition does not satisfy this standard. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 25 de novo review of this case. Having carefully reviewed the entire file, including plaintiff’s 26 objections, the court finds the findings and recommendations to be supported by the record and 27 by proper analysis. 28 ///// 1 Accordingly, 2 1. The findings and recommendations entered on June 29, 2022 (Doc. No. 5), are 3 adopted; 4 2. Pursuant to 28 U.S.C. § 1915(g), plaintiff is not allowed to proceed in forma 5 pauperis in this action; 6 3. Within thirty (30) days from the date of service of this order, plaintiff is required 7 to pay in full the $402.00 filing fee for this action; 8 4. Plaintiff's failure to pay the required filing fee as ordered will result in the 9 dismissal of this action without prejudice; and 10 5. This case is referred back to the assigned magistrate judge for further proceedings 11 consistent with this order. 12 | IT IS SO ORDERED. a - 8 Dated: _ August 9, 2022 al, A “7 14 UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28