Opinion
No. 2:15-cv-00025 MCE AC P
04-13-2015
ZANE HUBBARD, Plaintiff, v. MICHAEL J. SENG, et al., Defendants.
ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se in this civil rights action filed pursuant to 42 U.S.C. § 1983, on his complaint filed January 5, 2015. ECF No. 1. By order filed January 22, 2015, plaintiff was determined to be a three-strikes litigant under 28 U.S.C. § 1915(g). ECF No. 4. Plaintiff was given twenty-eight days to submit the filing fee and was advised that failure to pay the filing fee would result in dismissal of this action. Id. Twenty-eight days have passed and plaintiff did not submit the filing fee. Instead of paying the filing fee, plaintiff has instead filed a motion for assistance with service (ECF No. 6), a motion to compel the court to uphold the U.S. Constitution (ECF No. 8), a petition for writ of habeas corpus (ECF No. 9), and an amended petition for writ of habeas corpus (ECF No. 10). None of the allegations in these documents satisfy the imminent danger exception to § 1915(g). Andrews v. Cervantes, 493 F.3d 1047, 1055-56 (9th Cir. 2007)
If plaintiff seeks to initiate a petition for writ of habeas corpus, he must do so in a separate action.
Plaintiff seeks assistance in serving documents on prospective defendants (ECF No. 6) and argues that § 1915(g) is unconstitutional because it constitutes an ex post facto law and bill of attainder (ECF Nos. 8-10). See Rodriguez v. Cook, 169 F.3d 1176, 1180-82 (9th Cir. 1999) (holding § 1915(g) does not violate due process, equal protection, Ex Post Facto Clause, or separation of powers); Wilson v. Yaklich, 148 F.3d 596, 604-06 (6th Cir. 1998) (holding that § 1915(g) is not impermissibly retroactive or ex post facto, does not violate equal protection or due process and does not violate prohibition on bills of attainder), cert. denied, 119 S. Ct. 1028 (1999).
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Accordingly, IT IS HEREBY ORDERED that plaintiff's filings at ECF Nos. 6, 8, 9, and 10 be disregarded.
IT IS FURTHER RECOMMENDED that this action be dismissed for failure to pay the filing fee in accordance with this court's order. See Local Rule 110; Fed. R. Civ. P. 41(b).
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 twenty-one days after being served with these findings and recommendations, plaintiff may file written objections with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that 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). DATED: April 13, 2015
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE