(PC) Anderson v. Becerra ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEWIS ANDERSON, No. 1:20-cv-00068-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 14 XAVIER BECCARA, Attorney General PLAINTIFF’S MOTIONS TO STAY AND for the State of California, et al., FOR LEAVE TO FILE AN AMENDED 15 COMPLAINT, AND DISMISSING ACTION Defendants. 16 (Doc. Nos. 17, 19, 20, 21) 17 18 19 Plaintiff Lewis Anderson is a state prisoner proceeding pro se and in forma pauperis in 20 this civil rights action pursuant to 42 U.S.C. § 1983. This matter was referred to a United States 21 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 22 On March 17, 2020, the court denied plaintiff’s request to proceed in forma pauperis in 23 this action and directed him to pay the required $400.00 filing fee in full within twenty-one days 24 in order to proceed with this action. (Doc. No. 17.) To date, plaintiff has still not paid the filing 25 fee. 26 However, on April 10, 2020, plaintiff filed a motion to stay the action and a motion 27 requesting leave to file an amended complaint in order to attempt to meet the “imminent danger” 28 standard required by 28 U.S.C. § 1915(g). (Doc. Nos. 19, 20.) On April 14, 2020, the assigned 1 magistrate judge issued findings and recommendations recommending that both motions be 2 denied. (Doc. No. 21.) The findings and recommendations were served on plaintiff and 3 contained notice that objections were due within fourteen days of service. (Id. at 3.) On May 1, 4 2010, plaintiff filed timely objections. (Doc. No. 22.) 5 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 6 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 7 objections, the court concludes that the findings and recommendations are supported by the 8 record and by proper analysis. 9 In his objections, plaintiff argues that he should be able to amend his complaint to 10 incorporate “new developments” that occurred after the filing of his original complaint and which 11 plaintiff claims will demonstrate that “he is in immediate danger of serious physical harm.” (Doc. 12 No. 22 at 4.) But as the magistrate judge noted, “imminent danger for purposes of § 1915(g) is to 13 be measured at the time of the commencement of the action[.]” (Doc. No. 21 at 3–4) (citing 14 Bradford v. Usher, No. 1:17-cv-01128-DAD-SAB, 2019 WL 4316899, at *3 (E.D. Cal. Sept. 12, 15 2019)). See also Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 2007); Simmons v. Wuerth, 16 No. 1:19-cv-01107-DAD-SAB, 2020 WL 1621368, at *1 (E.D. Cal. Apr. 2, 2020). 17 Because the claimed “new developments” referred to by plaintiff occurred “after the 18 [original] complaint was filed in this action and involve different individuals at a different 19 prison,” (Doc. No. 22 at 4, 7), plaintiff is barred by § 1915(g) from relying on those events to 20 assert his earlier, unrelated claims via an amended complaint. If plaintiff wishes to pursue those 21 new claims, he must file a new action in the appropriate district1 and make a proper showing that 22 he is in “imminent danger of serious physical harm” at the time that new complaint is filed. 23 Accordingly: 24 1. The findings and recommendations issued on April 14, 2020 (Doc. No. 21), are 25 adopted in full; 26 1 As the magistrate judge noted, the events referenced by plaintiff in his motions for a stay and 27 for leave to file an amended complaint occurred at California State Prison, Los Angeles County, meaning that any claims based on those events are properly brought in the U.S. District Court for 28 wOAOe 4:2 UE OT MEARE SAR MUO Go PI Ve AY VI 1 2. Plaintiff's motion to stay and motion to amend the complaint (Doc. Nos. 19, 20) 2 are denied; 3 3. This action is dismissed without prejudice for failure to pay the $400.00 filing fee; 4 and 5 4. The Clerk of the Court is directed to close this case. 6 | IT IS SO ORDERED. si am 7 /}/ fP A; Dated: _ May 12, 2020 wea rE = 8 UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28