Opinion
No. 2: 18-cv-3155 KJN P
12-12-2018
ALONZO JOSEPH, Plaintiff, v. E. HORWITZ, et al., Defendants.
ORDER AND FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff has requested leave to proceed in forma pauperis. For the reasons stated herein, the undersigned recommends that plaintiff's request to proceed in forma pauperis be denied.
28 U.S.C. § 1983 provides,
In no event shall a prisoner bring a civil action ... [in forma pauperis] if the prisoner has, on 3 or more occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was 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 serious physical injury.
Court records indicate that plaintiff has previously had three cases dismissed at the screening stage for failure to state a claim. They are: (1) Joseph v. California Prison Authority, et al., 2:13-cv-122 CKD P (dismissed June 4, 2013); (2) Joseph v. Smith, 2:12-cv-1935 CMK P, (dismissed February 25, 2016); and (3) Joseph v. Heatley, 2:13-cv-00879 CMK P (dismissed September 22, 2016).
Plaintiff would still be entitled to proceed in forma pauperis if his complaint indicated that he was in imminent danger of serious physical injury. 28 U.S.C. § 1915(g); Andrews v. Cervantes, 493 F.3d 1047, 1049-50 (9th Cir. 2007). Plaintiff's claims do not, however, indicate such a danger. In this action, plaintiff seeks money damages for allegedly inadequate medical care he received while housed at Mule Creek State Prison ("MCSP"). The three named defendants are doctors employed at MCSP. At the time plaintiff filed this action he was housed at R.J. Donovan Correctional Facility ("RJDCF"). Plaintiff is still housed at RJDCF. Because plaintiff was no longer housed at MCSP when he filed this action, the alleged inadequate medical care he received at MCSP does not constitute an imminent danger.
For the reasons discussed above, the undersigned recommends that plaintiff's request to proceed in forma pauperis be denied, and plaintiff be ordered to pay the filing fee.
Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a district judge to this action; and
IT IS HEREBY RECOMMENDED that plaintiff s application to proceed in forma pauperis (ECF No. 2) be denied and plaintiff be ordered to pay the $400 filing fee.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: December 12, 2018
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE Jo3155.56