(PC) Dustin v. Childres ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 D. DUSTIN, No. 1:20-cv-00422-NONE-SAB (PC) 12 Plaintiff, 13 v. ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DIRECTING 14 CHILDRES, et al., PLAINTIFF TO PAY THE $400.00 FILING FEE IN FULL WITHIN THIRTY DAYS 15 Defendants. (Doc. Nos. 2, 11, 14) 16 17 18 Plaintiff D. Dustin is proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 19 1983. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 302. 21 On May 11, 2020, the assigned magistrate judge issued findings and recommendations, 22 recommending that plaintiff’s in forma pauperis application (Doc. No. 2) be denied. (Doc. No. 23 11.) The findings and recommendations were served on plaintiff and contained notice that 24 objections were due within fourteen days. (Doc. No. 11.) On May 27, 2020, plaintiff filed a 25 motion entitled notice of imminent danger, which the court construes as objections to the findings 26 and recommendations. (Doc. No. 13.) On June 2, 2020, plaintiff filed a renewed application to 27 proceed in forma pauperis. (Doc. No. 14.) 28 ///// 1 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, the 2 court has conducted a de novo review of this case. Having carefully reviewed the entire file, 3 including plaintiff’s objections, the court finds the pending findings and recommendations (Doc. 4 No. 11) to be supported by the record and proper analysis.1 5 Plaintiff appears to object to the pending findings and recommendations on the grounds 6 that he is in imminent danger from “numerous enemies.” (Doc. No. 13 at 1.) In support of this 7 objection, plaintiff appears to argue that he has been assaulted three times while imprisoned. (See 8 id.) However, plaintiff does not specify when these alleged assaults occurred. (See generally id.) 9 Moreover, plaintiff avers that he has been in “imminent danger of serious physical injury at the 10 time the complaint was filed!!” (Id. at 2.) Petitioner’s objection is merely conclusory and not 11 supported by specific and credible allegations demonstrating that he is in imminent danger. See 12 Childs v. Miller, 713 F.3d 1262, 1267 (10th Cir. 2013) (ordering appellee “will be barred from 13 proceeding [in forma pauperis] in future civil actions or appeals in federal court unless he is 14 ‘under imminent danger of serious physical injury,’ and he makes ‘specific [and] credible 15 allegations’ to that effect.”) (internal citations omitted). Plaintiff thus has failed to show that he 16 was in imminent danger of serious physical injury at the time that his complaint was filed. 17 ///// 18 ///// 19 ///// 20 ///// 21 ///// 22 ///// 23 ///// 24 ///// 25 ///// 26 1 The court notes that the findings and recommendations inadvertently stated that this action was 27 filed on June 26, 2019 (Doc. No. 11 at 3). However, the complaint was filed in this case on March 18, 2020. (Doc. No. 1.) This error does not impact the undersigned’s analysis of the 28 findings and recommendations. wOASe VOVUETE CINNAMON PIO Te AY VI 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. The findings and recommendations issued on May 11, 2020 (Doc. No. 11) are adopted 3 in full; 4 2. Plaintiff's in forma pauperis applications (Doc. Nos. 2, 14) are denied; 5 3. Plaintiff is required to pay the $400 filing fee in full within thirty (30) days of this 6 order; and 7 4. If plaintiff fails to pay the $400 filing fee in full within thirty (30) days of this order, 8 this action will be dismissed without prejudice and without further notice. IT IS SO ORDERED. 10 □ Dated: _ September 4, 2020 Sea 1" S098 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28