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Patrick Williams v. J. Clark Kelso

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


March 9, 2011

PATRICK WILLIAMS, PLAINTIFF,
v.
J. CLARK KELSO, ET AL., DEFENDANTS.

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner without counsel seeking relief for civil rights violations. See 42 U.S.C. § 1983. He seeks leave to proceed in forma pauperis. See 28 U.S.C. § 1915(a). This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

For the reasons explained below, the court finds that plaintiff has not demonstrated he is eligible to proceed in forma pauperis. A prisoner may not proceed in forma pauperis, 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). It appears that on at least three prior occasions, plaintiff brought actions while incarcerated that were dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted.*fn1 See Williams v. Dep't of Corrections, No. 1:06-cv-01793 RC (E.D. Cal. June 5, 2009) (dismissing under Rule 8 of the Federal Rules of Civil Procedure where third amended complaint remained "an incoherent and jumbled narrative" that failed to "articulate the specific acts of Defendants that Plaintiff believe[d] [gave] rise to constitutional violations"); Williams v. Dep't of Corrections, No. 1:07-cv-0083 SMS (E.D. Cal. Jan. 12, 2011) (dismissing, with prejudice, for failure to state a claim); Williams v. Kelso, No:10-cv-2898 (E.D. Cal. Feb. 10, 2011) (dismissing as frivolous).

Additionally, plaintiff has not alleged facts suggesting that he is under imminent danger of serious physical injury. See Dckt. No. 1 (Complaint) (claiming defendants ordered milk of magnesia/colace for plaintiff's constipation rather than discontinuing the medicine allegedly causing constipation, and that defendants have ignored his "tunneling tunning jels/electrodes"). "[I]t is the circumstances at the time of the filing of the complaint that matters for purposes of the "imminent danger" exception to § 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir. Cal. 2007).

In light of these circumstances, the court will recommend that plaintiff's application to proceed in forma pauperis be denied.

Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly assign a United States District Judge to this case.

Further, it is hereby RECOMMENDED that plaintiff's February 28, 2011 application to proceed in forma pauperis be denied, that plaintiff be directed to pay the $350 filing fee within 30 days, and that plaintiff be warned that his failure to do so will result in dismissal of this action. See 28 U.S.C. § 1914(a).

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)(l). Within fourteen 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." 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). Dated: March 8, 2011.


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