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Leblanc v. Duffy

United States District Court, E.D. California

July 22, 2017

ANTOINE LEBLANC, Plaintiff,
v.
B. DUFFY, et al., Defendants.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner proceeding pro se with a civil rights action under 42 U.S.C. § 1983. Before the court are plaintiff's motion to in forma paurperis (ECF Nos. 2) and motion for temporary restraining order (TRO) (ECF No. 5). For the reasons set forth below, the court denies the motion to proceed in forma paurperis and recommends that a district court judge deny the motion for TRO.

         As this court issues findings and recommendations below, the undersigned orders the Clerk's Office to assign a United States District Judge to this case.

         I. Motion to Proceed In Forma Pauperis

         Plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Title 28 U.S.C. § 1915(g) reads:

In no event shall a prisoner bring a civil action . . . [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.

         The court has reviewed relevant court records and has determined the following actions, all filed in the United States District Court for the Central District of California amount to “strikes” under 28 U.S.C. § 1915(g):

1. LeBlanc v. Asuncion, 2:16-cv-4280 JLS AFM: plaintiff denied permission to proceed in forma pauperis and case dismissed as frivolous on June 24, 2016.
2. LeBlanc v. Asuncion, 2:16-cv-4725 JLS AFM: plaintiff denied permission to proceed in forma pauperis and case dismissed on July 8, 2016 for, among other things, failure to state a claim upon which relief can be granted.
3. LeBlanc v. Asuncion, 2:16-cv-7434 JLS AFM: plaintiff denied permission to proceed in forma pauperis and case dismissed on October 12, 2016 for, among other things, failure to state a claim upon which relief can be granted.[1]

         The claims presented by plaintiff in his complaint do not suggest “imminent danger of serious physical injury.” While the claims presented in this case concern alleged acts of excessive force, there is no indication of ongoing threats to plaintiff from these defendants. (See ECF No. 1.) Specifically, plaintiff's complaint concerns an incident that occurred in April of 2016, during which plaintiff claims that the three named defendants forcibly removed him from his cell when he refused to give handcuffs to a correctional officer. (Id. at 3-4.) According to plaintiff, the correctional officers used excessive force in removing him from the cell to recover the handcuffs and assaulted him. (Id.) The complaint does not suggest “imminent danger of serious physical injury.”

         In addition to the complaint, plaintiff filed a motion for TRO, which is addressed below. While the motion for TRO presents allegations of retaliation against plaintiff by various individuals at the correctional facility, it does not allege that plaintiff is in “imminent danger of serious physical injury” stemming from the claims in this complaint. (ECF No. 5.) The TRO motion seeks injunctive relief against non-parties to this action for purportedly retaliating against plaintiff. As discussed in the analysis below, the TRO motion concerns individuals who the court does not have jurisdiction over and relates to matters outside the incident at the center of this case.

         In light of these facts, plaintiff's motion to proceed in forma pauperis must be denied. Plaintiff will be granted 21 days within which to submit the $400 filing fee for this action. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.

         II. Motion for Temporary ...


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