Opinion
No. 1:18-cv-01061-CAC-BAM (PC)
10-18-2018
AARON LAMONT STRIBLING, Plaintiff, v. MACHADO, et al., Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS AND REQUIRING PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION
(Doc. Nos. 2, 8)
TWENTY-ONE (21) DAY DEADLINE
Plaintiff Aaron Lamont Stribling, a state prisoner, proceeds pro se in this civil rights action filed on August 2, 2018, in the United States District Court for the Central District of California. (Doc. No. 1.) The action was transferred to the Eastern District of California on August 8, 2018. (Doc. No. 4.)
On August 10, 2018, the assigned magistrate judge issued findings and recommendations recommending that plaintiff's application to proceed in forma pauperis be denied and that plaintiff be required to pay the $400.00 filing fee in full to proceed with this action. (Doc. No. 8.) Those findings and recommendations were served on plaintiff and contained notice that any objections thereto were to be filed within fourteen (14) days after service. (Id. at 3.) Plaintiff filed objections on August 27, 2018. (Doc. No. 10.) Together with his objections, plaintiff also filed a motion to amend the complaint and a proposed first amended complaint. (Doc. Nos. 11, 12.)
In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(c), this court has conducted a de novo review of the case, including plaintiff's objections. Plaintiff's primary objection to the findings and recommendations is that he filed an application to proceed in forma pauperis without prepayment of the filing fee showing that he has insufficient funds to pay the filing fee. (Doc No. 10.)
Having carefully reviewed the entire file, including the proposed first amended complaint, the court finds the findings and recommendations to be supported by the record and by proper analysis. Plaintiff's objections to the findings and recommendations fail to address the magistrate judge's finding that he is subject to the three strikes bar under 28 U.S.C. § 1915(g) since he has had three prior actions filed in this district dismissed for failure to state a claim and/or as frivolous or malicious as well as an appeal dismissed by the Ninth Circuit as frivolous. (Doc. No. 8 at n. 1.) The court finds no legal basis upon which to question the magistrate judge's findings and recommendations in that regard. Furthermore, the allegations in plaintiff's complaint and proposed first amended complaint are insufficient to trigger the "imminent danger of serious physical injury" exception to the three strikes bar under § 1915(g).
Accordingly:
1. The findings and recommendations (Doc. No. 8) issued on August 10, 2018, are adopted in full;///// ///// /////
2. In accordance with 28 U.S.C. § 1915(g), plaintiff's application to proceed in forma pauperis (Doc. No. 2) is denied;
3. Within twenty-one (21) days following service of this order, plaintiff shall pay the required $400.00 filing fee in full to proceed with this action. If plaintiff fails to pay the filing fee within the specified time, this action will be dismissed; and
4. The matter is referred back to the assigned magistrate for proceedings consistent with this order.IT IS SO ORDERED.
Dated: October 18 , 2018
/s/_________
UNITED STATES DISTRICT JUDGE