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Driver v. McLough

United States District Court, Eastern District of California
Jun 3, 2022
2:21-cv-01142-JAM-JDP (PC) (E.D. Cal. Jun. 3, 2022)

Opinion

2:21-cv-01142-JAM-JDP (PC)

06-03-2022

BILLY DRIVER, JR., Plaintiff, v. MCLOUGH, et al., Defendants.


FINDINGS AND RECOMMENDATIONS THAT PLAINTIFF'S APPLICATION TO PROCEED IN FORMA PAUPERIS BE DENIED

ECF No. 6

FOURTEEN-DAY DEADLINE

JEREMY D. PETERSON, UNITED STATES MAGISTRATE JUDGE

Plaintiff has filed a request to proceed in forma pauperis, ECF No. 6. He is, as I explained in my previous order, ECF No. 12, a “three-striker” within the meaning of Title 28 U.S.C. § 1915(g). Plaintiff was previously determined to have filed at least three cases that were dismissed for failure to state a viable claim. See Driver v. U.S. Special Master, No. 1:17-cv-0202-DAD-BAM (E.D. Cal. 2018) at ECF Nos. 7 & 9. Three-strikers may still proceed in forma pauperis if their complaint makes a showing of imminent physical danger. 28 U.S.C. § 1915(g). Plaintiff's last complaint did not make that showing, and I offered him a chance to amend. ECF No. 12 at 2. He has filed a second amended complaint, which also fails to allege that he is in imminent danger of physical harm. Accordingly, I will recommend that his application to proceed in forma pauperis be denied.

In this case, Judge McAuliffe found that plaintiff had filed three cases that were 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 No. 2:11-cv-02397-EFB (E.D. Cal.) (dismissed September 12, 2012, for failure to state a claim); and (3) Driver v. Epp, Case No. 2:12-cv-00589-EFB (E.D. Cal.) (dismissed September 5, 2012, for failure to state a claim).

Plaintiff alleges that, on June 21, 2021, he was attacked by another inmate who acted on behalf of defendant McClough and two other non-defendant correctional officers. ECF No. 13 at 3. He allegedly sustained injuries to his lips and nose during the fight. Id. Crucially, however, he does not allege that another attack by this inmate (or by some other inmate on defendant's orders) is imminent or likely. The remainder of his complaint is composed of various uncontextualized grievance and medical documents.

I have already given plaintiff a chance to amend and explain why he fits into 1915(g)'s imminent danger exception. He has failed to do so and I now recommend that his application to proceed in forma pauperis be denied. If he wishes to proceed with this suit, he must first pay the filing fee.

Accordingly, it is RECOMMENDED that:

1. Plaintiff's application to proceed in forma pauperis, ECF No. 6, be DENIED.
2. Plaintiff be directed to pay the full filing fee within fourteen days of any order adopting these recommendations.

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. Such a document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED.


Summaries of

Driver v. McLough

United States District Court, Eastern District of California
Jun 3, 2022
2:21-cv-01142-JAM-JDP (PC) (E.D. Cal. Jun. 3, 2022)
Case details for

Driver v. McLough

Case Details

Full title:BILLY DRIVER, JR., Plaintiff, v. MCLOUGH, et al., Defendants.

Court:United States District Court, Eastern District of California

Date published: Jun 3, 2022

Citations

2:21-cv-01142-JAM-JDP (PC) (E.D. Cal. Jun. 3, 2022)