IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
May 11, 2009
JOHN E. WEST, PLAINTIFF,
JAMES YATES, DEFENDANT.
The opinion of the court was delivered by: William M. Wunderlich United States Magistrate Judge
FINDINGS AND RECOMMENDATION
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. This proceeding was referred to this court by Local Rule 72-302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff has submitted request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).
Plaintiff, an inmate in the custody of the California Department of Corrections and High Desert State Prison, brings this civil rights action against the Warden at Pleasant Valley State Prison.
This action proceeds on the March 17, 2009, first amended complaint. Plaintiff claims that he was subjected to inadequate medical care. Plaintiff also asserts other, vague, factual allegations.
The Prison Litigation Reform Act provides that "[i]n no event shall a prisoner bring a civil action . . . under this section if the prisoner has, on 3 or more occasions, while incarcerated or detained in a facility, brought an action or appeal in a court of the United States that was dismissed on the ground 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 injury." 28 U.S.C. § 1915(g).
This plaintiff has, on 3 prior occasions, brought civil actions challenging the conditions of his confinement. All three action were dismissed as frivolous, or for failure to state a claim upon which relief can be granted. Among the dismissals suffered by plaintiff that count as strikes under 1915(g) are: West v. Climites, No 1:02-cv-6437-REC WMW PC; West v. Yates, et al., No. 1:05-cv-1554 OWW SMS PC; West v. Lamarque et al., No. 1:06-cv-0628-LJO-WMW PC. Plaintiff is therefore not entitled to proceed in forma pauperis unless he alleges facts indicating imminent danger of serious injury. Plaintiff alleges no such facts in this case.
Accordingly, on April 7, 2009, an order to show cause was entered, directing Plaintiff to show cause whey he should not be denied leave to proceed in forma pauperis and directed to pay the filing fee in full. Plaintiff has not filed a response to the order to show cause.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's application to proceed in forma pauperis be denied pursuant to 28 U.S.C. § 1915(g).
2. Plaintiff be directed to pay the $350 filing fee in full, or suffer dismissal of this action pursuant to Local Rule 11-110.
These findings and recommendations are 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 days after being served with these findings and recommendations, any party 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." Any reply to the objections shall be served and filed within ten days after service of the objections. The parties are advised that failure to file objections within the specified time waives all objections to the judge's findings of fact. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). 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).
IT IS SO ORDERED.
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