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Brown v. Newsom

United States District Court, E.D. California

September 9, 2019

DEXTER BROWN, Plaintiff,
v.
GAVIN NEWSOM, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff is a state prisoner, proceeding without counsel, with a civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff requests leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated herein, the undersigned recommends that plaintiff's motion to proceed in forma pauperis be denied.

         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).

         Court records reveal that on at least three occasions prior to the filing of this action on May 24, 2019, lawsuits filed by plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted: 1) Brown v. Mueller, 2:12-cv-2321 KJM DAD (dismissed on September 24, 2013, as frivolous and for failure to state a claim); 2) Brown v. Miller, 2:15-cv-1687 GEB CMK (dismissed on September 21, 2016, for failure to state a claim); and 3) Brown v. State of California, 2:17-cv-1845 MCE AC (dismissed on December 6, 2017, for failure to state a claim).

         In addition, in Brown v. Sagiereddy, 2: 17-cv-2041 KJM AC (E.D. Cal.), on May 2, 2018, the district court found that plaintiff had filed five cases that qualified as strikes under 28 U.S.C. § 1915(g). The Ninth Circuit also found that plaintiff sustained three or more prior actions and appeals dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. Brown v. State of California, No. 17-17527 (9th Cir. 2017).

         Plaintiff is precluded from proceeding in forma pauperis in this action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. 1915(g). For the reasons stated herein, the undersigned finds that plaintiff does not meet the imminent danger exception to 1915(g).

         Named as defendants in this action are California Governor Gavin Newsom and Adrian, who plaintiff describes as an assistant to former California Governor Brown and defendant Newsom. In the description of his claims, plaintiff also appears to name former Governor Brown as a defendant.

         Plaintiff alleges that from 2014 to 2019, defendant Adrian failed to pass on reports concerning crimes committed against plaintiff by other prisoners to defendants Brown and Newsom. These reports were communicated by mail and phone.

         Plaintiff alleges that on June 25, 2014, he was assaulted by inmate Harris. Plaintiff sent defendant Brown a written report regarding the assault. Plaintiff's mother reported the assault to the Governor's Office of Legal Affairs by telephone. Defendant Brown failed to respond to these communications.

         Plaintiff alleges that on January 11, 2015, he was assaulted by inmate Miller. Plaintiff's mother reported the assault to the Governor's Office of Legal Affairs by telephone. Plaintiff sent defendant Brown a written report regarding the assault. Defendant Brown failed to respond to these communications.

         Plaintiff alleges that on or around February 2, 2015, he was assaulted by inmate Lee. Plaintiff's mother reported the assault to the Governor's Office of Legal Affairs by telephone. Plaintiff sent defendant Brown a written report regarding ...


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