FAVOR v. MONAE

Case No. 1:17-cv-00756-SKO (PC).

BRANDON ALEXANDER FAVOR, Plaintiff, v. MONAE, et al., Defendants.

United States District Court, E.D. California.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Brandon Alexander Favor, Plaintiff, Pro Se.


FINDINGS AND RECOMMENDATIONS TO DENY PLAINTIFF'S REQUEST TO PROCEED IN FORMA PAUPERIS

(Doc. 2)

ORDER DIRECTING CLERK'S OFFICE TO ASSIGN A DISTRICT JUDGE

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

Plaintiff, Brandon Alexander Favor, is a state prisoner proceeding pro se in this civil action under 28 U.S.C. § 13423(a) and 42 U.S.C. § 1983, which he filed on June 2, 2017. Along with the Complaint, Plaintiff filed an application to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This request should be DENIED since Plaintiff has three strikes under § 1915 and his allegations fail to show that he is in imminent danger of serious physical injury.

II. THREE-STRIKES PROVISION OF 28 U.S.C. § 1915

28 U.S.C. § 1915 governs proceedings in forma pauperis. "In no event shall a prisoner bring a civil action . . . under this section 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 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." 28 U.S.C. § 1915(g).

III. DISCUSSION

The Court may take judicial notice of court records. United States v. Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004). Here, judicial notice is taken of three of Plaintiff's prior actions:1 Favor v. Rome, et al., 1:15-cv-01865-LJO-EPG, which was dismissed on November 22, 2016, for failure to state a claim; Favor-El v. United States of America, et al., 2:15-cv-01448-GEB-AC, which was dismissed on October 22, 2015, as frivolous; and Favor-El v. Rihanna, et al., 2:15-cv-09502-JGB-JEM, which was dismissed on December 16, 2015, as frivolous, malicious, and for failure to state a claim. Plaintiff is thus subject to 28 U.S.C. § 1915(g), and is precluded from proceeding in forma pauperis in this action unless he demonstrates that at the time he filed this action, he was under imminent danger of serious physical injury.

The Court has reviewed Plaintiff's Complaint and finds that he does not meet the imminent danger exception. See Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. 2007). Plaintiff's allegations are largely incoherent — it appears that he is simply reciting various events of his upbringing and activities which resulted in his incarceration. (Doc. 1.) None of Plaintiff's allegations show that he was under an imminent danger at the time he filed this action. Based on the foregoing, the Court finds that Plaintiff fails to allege an imminent danger of serious physical injury necessary to bypass the restriction of § 1915(g) on filing suit without prepayment of the filing fee since he has three strikes. Plaintiff may not proceed in forma pauperis and must submit the appropriate filing fee in order to proceed with this action.

IV. CONCLUSION and RECOMMENDATION

Based on the foregoing, it is HEREBY RECOMMENDED that Plaintiff's motion to proceed in forma pauperis, filed June 2, 2017 (Doc. 2), be denied and that Plaintiff be ordered to pay the filing fee in full.

The Clerk's Office is directed to assign a district judge to this action.

These Findings and Recommendations will be submitted to the United States District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within thirty (30) days of the date of service of these Findings and Recommendations, Plaintiff may file written objections with the Court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff's failure to file objections within the specified time may result in the waiver of his rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

IT IS SO ORDERED.

FootNotes


1. It is noteworthy that Plaintiff has filed thirty-seven (37) actions in this district alone and has filed numerous other actions in the other district courts in this state. It is also noted that Plaintiff variously files actions under the surnames "Favor" and "Favor-El."

Comment

1000 Characters Remaining

Leagle.com reserves the right to edit or remove comments but is under no obligation to do so, or to explain individual moderation decisions.

User Comments

Listed below are the cases that are cited in this Featured Case. Click the citation to see the full text of the cited case. Citations are also linked in the body of the Featured Case.

Cited Cases

  • No Cases Found

Listed below are those cases in which this Featured Case is cited. Click on the case name to see the full text of the citing case.

Citing Cases