(PC) Driver v. ADA 1824 Panels ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BILLY DRIVER, JR, No. 1:19-cv-01718-DAD-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS 14 ADA 1824 PANELS, et al., (Doc. Nos. 4, 8) 15 Defendants. 16 17 Plaintiff Billy Driver Jr. is a state prisoner proceeding pro se in this civil rights action 18 pursuant to 42 U.S.C. § 1983. This matter was referred to a United States Magistrate Judge 19 pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On December 16, 2019, the assigned magistrate judge issued findings and 21 recommendations, recommending that plaintiff’s application to proceed in forma pauperis be 22 denied pursuant to 28 U.S.C. § 1915(g) and that plaintiff be ordered to pay the required $400.00 23 filing fee in full in order to proceed with this action. (Doc. No. 8.) The findings and 24 recommendations were served on plaintiff and contained notice that any objections thereto were 25 to be filed within thirty (30) days after service. (Id. at 4.) Plaintiff filed written objections to the 26 findings and recommendations on January 14, 2020 and January 21, 2020.1 (Doc. Nos. 12, 13.) 27 1 Plaintiff’s February 7, 2020 request for ruling on the pending findings and recommendations 28 (Doc. No. 20) will be denied as having been rendered moot by this order. 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this court has conducted a 2 de novo review of the case. Having carefully reviewed the entire file, including plaintiff’s 3 objections, the court finds the findings and recommendations to be supported by the record and 4 by proper analysis. 5 In plaintiff’s objections, he states that he is in imminent danger because he endured 6 “continued and ongoing excessive use of force” through 2015 and 2016. (Doc. No. 12 at 2.) 7 Plaintiff also argues that he endured the use of pepper spray, assault, and physical violence from 8 medical staff and guards in early 2019. (Doc. No. 13 at 2.) However, as the magistrate judge 9 correctly noted in the pending findings and recommendations, imminent danger under § 1915(g) 10 must be alleged and assessed at the time plaintiff filed his complaint, which in this case was on 11 December 10, 2019 (Doc. No. 1). The only instance plaintiff references that is temporally close 12 to the time he filed his complaint in this action is when he was allegedly subjected to “rogue 13 violent abusive guards and top prison officials,” including correctional officers Torrez and Sevilla 14 “as of December 24, 2019.” (Id.) Even this vague allegation, however, did not appear in the 15 complaint. (See generally Doc. No. 1.) “The exception [under § 1915(g)] applies if the 16 complaint makes a plausible allegation that the prisoner faced ‘imminent danger of serious 17 physical injury’ at the time of filing.” Andrews v. Cervantes, 493 F.3d 1047, 1055 (9th Cir. 18 2007). Because the complaint filed by plaintiff in this action lacks any such allegation, the 19 imminent danger exception does not apply here. 20 Accordingly: 21 1. The findings and recommendations issued on December 16, 2019 (Doc No. 8) are 22 adopted in full; 23 2. In accordance with 28 U.S.C. § 1915(g), plaintiff’s application to proceed in forma 24 pauperis (Doc. No. 4) is denied; 25 3. Within twenty-one (21) days following the date of service of this order, plaintiff 26 shall pay the $400.00 filing fee in full in order to proceed with this action; 27 4. Plaintiff is warned that, if he fails to pay the required filing fee within the specified 28 time, this action will be dismissed; wOOe 4:£0 UV VE FLOM PARE SEAR MUO IR Te AY VI 1 5. Plaintiff's motion for ruling on the findings and recommendations (Doc. No. 20) is 2 denied as being rendered moot by this order; and 3 6. This matter is referred back to the assigned magistrate judge for further 4 proceedings. 5 | IT IS SO ORDERED. a " 6 Li. wh F Dated: _ June 24, 2020 wea rE = 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28