(PC) Driver v. KVSP ADA 1824 Panel(s) ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, Jr., Case No. 1:20-cv-00146-NONE-BAM (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS DENYING 13 v. PLAINTIFF’S MOTION TO PROCEED IN FORMA PAUPERIS AND REQUIRING 14 KVSP ADA #1824 PANEL(S), et al., PLAINTIFF TO PAY THE FILING FEE TO PROCEED WITH THIS ACTION 15 Defendants. (Doc. Nos. 2, 7) 16 TWENTY-ONE (21) DAY DEADLINE 17 18 Plaintiff Billy Driver, Jr. is a state prisoner proceeding pro se in this civil rights action 19 pursuant to 42 U.S.C. § 1983. 20 On February 3, 2020, the assigned magistrate judge issued findings and recommendations 21 recommending that plaintiff’s application to proceed in forma pauperis be denied pursuant to 28 22 U.S.C. § 1915(g) and that plaintiff be required to pay the $400.00 filing fee in full to proceed with 23 this action. (Doc. No. 7.) Those findings and recommendations were served on plaintiff and 24 contained notice that any objections thereto were to be filed within fourteen (14) days after 25 service. (Id. at 3.) On February 14, 2020, plaintiff timely filed objections. (Doc. No. 8.) 26 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C), this court has conducted a 27 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 28 objections, the court finds the findings and recommendations to be supported by the record and 1 | by proper analysis. The findings and recommendations identify at least three cases filed by 2 | plaintiff that were dismissed for failure to state a claim prior to his initiation of the present 3 | lawsuit. See Driver v. Martel, No. 2:08-cv-01910-GEB-EFB (E.D. Cal.) (dismissed September 4 | 16, 2009, for failure to state a claim); Driver v. Kelso, No. 2:11-cv-02397-EFB (E.D. Cal.) 5 | (dismissed September 12, 2012 for failure to state a claim); Driver v. Zamora, No. 2:14-cv- 6 | 02170-BRO-AGR (C.D. Cal.) (dismissed August 21, 2014, for failure state a claim). The 7 | findings and recommendations also correctly conclude that nothing in the present record triggers 8 | the imminent danger exception to § 1915(g), since plaintiff has failed to allege any facts 9 | suggesting that he was facing any imminent danger of physical injury at the time he filed his 10 | complaint. See Andrews v. Cervantes, 493 F.3d 1047, 1050 (9th Cir. 2007). Plaintiffs objections 11 state in conclusory fashion, without providing any factual detail or support whatsoever, that 12 | plaintiff is “in present time ... in imminent danger(s) of more physical harm(s) and injuries... .” 13 | (Doc. No. 8 at 3.) But, “vague and utterly conclusory assertions” of imminent danger are 14 | insufficient to establish one’s entitlement to relief under § 1915(g)’s exception. White v. 15 | Colorado, 157 F.3d 1226, 1231-32 (10th Cir. 1998). 16 Accordingly, 17 1. The findings and recommendations issued on February 3, 2020, (Doc. No. 7), are 18 ADOPTED IN FULL; 19 2. In accordance with 28 U.S.C. § 1915(g), plaintiff's motion to proceed in forma 20 pauperis, (Doc. No. 2), is DENIED; 21 3. Within twenty-one (21) days following the date of service of this order, plaintiff shall 22 pay the $400.00 filing fee in full to proceed with this action. If plaintiff fails to pay 23 the filing fee within the specified time, this action will be dismissed; and 24 4. The matter is referred back to the assigned magistrate for proceedings consistent with 25 this order. 26 | IT IS SO ORDERED. me □ Dated: _ February 18, 2020 Yl AF. yr 28 UNITED STATES DISTRICT JUDGE