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Favor v. Corcoran State Prison

United States District Court, E.D. California

September 24, 2019

BRANDON ALEXANDER FAVOR, Plaintiff,
v.
CORCORAN STATE PRISON, et al., Defendants.

          ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS RECOMMENDING PLAINTIFF’S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS BE DENIED (ECF NO. 2)

          BARBARA A. MCAULIFFE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Brandon Alexander Favor (“Plaintiff”) is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff initiated this action on September 23, 2019, together with a motion for leave to proceed in forma pauperis. (ECF Nos. 1, 2.) Plaintiff has not yet submitted a certified copy of his prison trust account statement.

         Plaintiff is subject to 28 U.S.C. § 1915(g), which provides that “[i]n 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.”[1] Plaintiff has been informed in prior cases that he is subject to 28 U.S.C. § 1915(g).[2]

         The Court has reviewed Plaintiff’s complaint and finds that his allegations do not satisfy the imminent danger exception to section 1915(g).[3] Andrews v. Cervantes, 493 F.3d 1047, 1053-55 (9th Cir. 2007). Though difficult to read, Plaintiff appears to allege a violation of due process related to a disciplinary proceeding from June 2014, as well as Eighth Amendment and Fourteenth Amendment violations regarding confiscation of Plaintiff’s property from February 2016. (ECF No. 1.) As such, Plaintiff has not alleged any imminent danger of serious physical injury at the time the complaint was filed and has not satisfied the exception from the three strikes bar under 28 U.S.C. § 1915(g). Plaintiff must pay the $400.00 filing fee if he wishes to litigate this action.

         Accordingly, the Court HEREBY ORDERS the Clerk of the Court to randomly assign a District Judge to this action.

         Further, it is HEREBY RECOMMENDED that:

         1. The motion to proceed in forma pauperis, (ECF No. 2), be DENIED, pursuant to 28 U.S.C. § 1915(g); and

         2. Plaintiff be ORDERED to pay the $400 initial filing fee in full to proceed with 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 fourteen (14) days after being served with these Findings and Recommendations, Plaintiff may file written objections with the court. The document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Plaintiff is advised that the failure to file objections within the specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” 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.

---------

Notes:

[1] The Court takes judicial notice of the following United States District Court cases: (1) Favor-El v. Rome, No. 1:15-cv-01865-LJO-EPG (E.D. Cal.) (dismissed on November 22, 2016 for failure to state a claim); (2) Favor v. State of California, No. 2:16-cv-02870-JGB-JEM (C.D. Cal.) (dismissed on May 2, 2016 as frivolous, malicious, and for failure to state a claim); and (3) Favor-El v. United States of America, No. 2:15-cv-01448-GEB-AC (E.D. Cal.) (dismissed on October 22, 2015 as frivolous).

[2] See, e.g., Favor v. Monae, No. 1:19-cv-00081-LJO-SKO (E.D. Cal.). It is also noteworthy that Plaintiff has been deemed a vexatious litigant, has filed fifty (50) actions in this district alone, and has filed numerous other actions in the other district courts in this state. Plaintiff has also filed actions ...


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